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AN    EPITOME 

< 


Leading  Com.mox  Law  Cases  ; 


WITH  SOME  SHORT  NOTES  THEREON 


CHIEFLY    INTENDED    AS 


%  43uiDc  to  *\^mitf)'^  Heading  Ca^cia/' 


FIFTH  EDITION. 


BY 

JOHN    IXDERMAUR. 

SOUCITOR, 

AUTHOR  OF   "  PRINCIPLES   OF  THE  COMMON    LAW,"   "  MANUAL  OF    PRACTICE,"   "  AN 
EPITOME  OF   LEADING  CONVEYASaNG   AND  EQUITY   CASES,"    ETC.,    ETC. 


AMERICAN  EDITION 
BY 

CHARLES  A.  BUCKXAM  and  BORDMAN  HALL, 
©f  t|)c  iSoston  13ar. 


BOSTON: 
THE  BOSTON   BOOK   COMPANY. 

1889. 


Copyright,  1882, 
By  SOULE  and  BUGBEE. 


PREFACE  TO  THE  A^IERICAN  EDITION. 


The  favor  with  which  Mr.  Indermaur's  Epitome  is 
received  in  England  has  induced  the  Editors  of  this 
edition  to  undertake  to  adapt  the  work  to  the  needs 
of  the  American  student.  In  so  doing  they  have 
sought  to  briefly  illustrate  the  rules  laid  down,  citing 
American  authorities,  and,  in  a  few  instances,  have 
extended  the  notes  by  stating  additional  matter  and 
citations. 

As  in  the  English  edition,  "  for  the  particular  use 
of  students,  blank  spaces  are  left  for  the  purpose  of 
making  manuscript  notes  and  additions." 

Boston,  January,  18S3. 


7407'^6 


PREFACE. 


The  Compiler  of  this  small  volume  while  reading 
for  his  Final  Examination,  devoted  some  time  to  the 
study  of  Leading  Cases,  and  it  long  ago  occurred  to 
him  that  —  many  articled  clerks  not  having  sufficient 
time  to  fully  peruse  the  large  volumes  of  "  Leading 
Cases  "  —  a  short  Epitome,  giving  those  decisions 
most  important  to  be  read  and  remembered,  would  be 
very  useful  to  them.  Besides  this,  he  has  long  thought 
that  an  Epitome  might  be  equally,  if  not  more  useful, 
to  those  who  attentively  read  the  large  volumes,  for 
they  can,  after  having  done  so,  speedily  run  through 
a  small  manual  like  the  present  and  impress  the  chief 
decisions  on  their  memories.  This  Epitome  professes 
to  nothing  particularly  original,  for  it  is  indeed  but 
an  abridgment  of  the  chief  decisions  in  "  Smith's 
Leading  Cases,"  with  some  few  additional  ones,  and 
some  short  notes  bearing  directly  on  the  different 
decisions.  The  facts  of  the  different  cases  are  given 
when    they    could    be    shortly    stated,  and  when    they 


VI  PREFACE. 

seemed  to  be  of  a  character  likely  to  serve  to  impress 
the  decision  on  the  student's  memory. 

It  is  sincerely  hoped  that  this  Epitome  will  be  found 
useful  for  the  purpose  for  which  it  is  intended,  viz.,  as 
a  help  to  the  reading  of  "  Smith's  Leading  Cases." 

J.  I. 


INDEX  TO  THE  CASES  EPITOMIZED. 


Page. 

Page. 

/    Addison  v.  Gandesequi 

78 

I'Anson  v.  Stuart  .    . 

65 

^    Aldous  v.  Cornwell  . 

55 

Keech  v.  Hall     .     .     . 

49 

.,?   Armory  v.  Delamirie 

34 

Kingston's  (Duchess  of) 

AsHBY  V.  White  ,     ,     . 

25 

Case 

93 

^       BiCKERDIKE   V.  BOLLMAN 

63 

Lampleigh      v.     Braith 

i  BiRKMYR  V.  Darnell  . 

27 

WAITE 

16 

'    Calye's  Case  .... 

11 

Lickbarrow  v.  Mason 

53 

Chandelor  v.  Lopus    . 

18 

LUMLEY   V.  GyE       .      .      . 

87 

Clayton  v.  Blakey     . 

6-1 

Mallam  v.  May  .    .    . 

38 

CoGGS  V.  Bernard    .     . 

21 

Manby  v.  Scott  .    .    . 

81 

Collins  v.  Blantern  . 

36 

Master  v.  Miller   .    . 

55 

/^   Cox  v.  Hickman  .    .    . 

SI 

Merryweather  v.  Nixan 

86 

-  Cumber  v.  Wane  .    .    . 

32 

Miller  v.  Race  .    .    . 

44 

Currie  v.  Misa    .    .    . 

46 

Misa  v.  Currie    .    .    . 

46 

Cutter  v.  Powell  .    . 

61 

Mitchell  v.  Reynolds 

38 

Dalby  v.  India  and  Lon 

Montague  v.  Benedict 

81 

don     Life    Assurance 

Moss  V.  Gallimore  .    . 

49 

Company   

73 

Mostyn  v.  Fabrigas    . 

51 

/I   Doe  d.  RiGGE  v.  Bell. 

67 

Nepean  v.  Doe    .    .    . 

92 

/  Dumpor's  Case    .    .    . 

4 

Omichund  v.  Barker  . 

42 

Elwes  v.  Mawe   .    .    . 

69 

Pasley  v.  Freeman 

18 

Frost  v.  Knight  .    .    . 

95 

Paterson  v.  Gandesequi 

78 

-    ■  George  v.  Clagett 

76 

Peter  v.  Compton   .    . 

27 

-  '    Hadley  v.  Baxendale 

88 

Pigot's  Case    .... 

55 

Hebdon  v.  West  .    .    . 

73 

Price  v.   Earl   of    Tor 

Higham  v.  Ridgway     . 

30 

rington 

30 

Hochster  v.  De  la  Tour 

95 

Roe  v.  Tranmar  .    .    . 

84 

VIU 


INDEX    TO    THE    CASES    EPITOMIZED. 


Seaton  V.  Benedict  . 
Semayne's  Case  .  .  . 
Simpson  v.  Hartopp  . 
Six  Carpenters'  Case 
Spencer's  Case  .  .  . 
Thomson  v.  Davenport 
Twynne's  Case    .    .    . 


Page. 

8i 

9 

40 

6 

79 
I 


Page. 

Vicars  v.  Wilcocks     .    .  %■] 

Wain  v.  Warlters  ...  71 

Waugh  v.  Carver   ...  57 
Wigglesworth  v.  Dalli- 

SON 48 

Wilson  v.  Brett     ...  22 


Note.  —  The  Edition  of  "Smith's  Leading  Cases "  to  which  reference  is 
made  in  this  Epitome  is  the  7th  American  published  -n  1872 


LIST   OF   ENGLISH    CASES    REFERRED 
TO   IN   THE   NOTES. 


Page. 

AlTCHESON    V.  LOHRE      .      .  74 

Barclay,  Ex  parte  ...  70 

Broadwood  v.  Graxara.  12 

Cochrane  v.  Rymill   .     .  35 
Cory    v.    Thames     Iron 

Works  Co 89 

Daglish,  Ex  parte    ...  70 

Davis  v.  Goodman  ...  3 

Debenham  7/.  Mellon.    .  82 

Donellan  v.  Read  ...  28 

Eastland  v.  Burchell    .  83 

Farrant  v.  Barnes      .     .  23 

Edgerton  v.  Mathews    .  71 

Fell  v.  Knight    ....  12 

Fray  v.  Voules   .    ,    .    .  25 

godsall  v.  boldero   .    .  74 

Hickman  z'.  Upsall     .     .  92 

HOLLINS   V.  FoWLER.      .      .  35 

Jolly  v.  Rees  .    ,    .    .    .  82 

Lockhart  v.  Hardy    ,  50 


Page. 

Marzetti  V.  Williams     .  25 

Mullinger  v.  Florence.  12 
National       Mercantile 

Bank  7a  Hampson     .    .  35 

Phene,  /n  re 92 

Planche'  v.  Colburn  .  .  61 
Prudential     Assurance 

Co.  V-  Knott      ....  65 

Rayner  v.  Preston      .    .  74 

SiBREE  V.  Tripp  ....  32 
Stephens,    Ex  parte.    Re 

Pearson    2 

Taylor  v.  McKeand   .    ,  35 

Thomas  v.  Williams  .  .  65 
Thorley's    Cattle  Food 

Co.  V.  Massam  ....  65 

Threlfall  v.  Barwick    0  12 

Warner  v.  McKay  ...  76 
ZuNz    V.   South-Eastern 

Railway  Co 23 


LIST  OF  AMERICAN  CASES  CITED. 


Page. 

Pabe. 

Abbott  v.  Holway  .    . 

85 

Cromwell  v.  The  Brook 

Adams  v.  Lawson     .    . 

66 

LYN  Fire  Ins.  Co. 

. 

11 

Alger  v.  Thacher  .    . 

39 

Curtis  v.  Brown.    . 

29 

Allen  v.  Crofoot   .    . 

15 

Daily  v.  Green  .    . 

20 

Allen  v.  Martin     .    . 

10 

Davis  v.  Maxwell  . 

62 

Armstrong  v.  Clarion 

86 

Davis  v.  Thompson  . 

68 

Augusta  v.  Windsor  . 

31 

Davis  v.  Turner.    . 

3 

Barlow  v.  Wainwright 

68 

Day  v.  Kinney     .    . 

47 

Bartholomew    v.    Bush 

Deming  v.  Grand  Tr 

UXK 

NELL 

20 

R.R.  Co 

91 

Bartholomew  t/.  Jackson 

17 

Denny  v.  Cabot  .    . 

. 

60 

Bay  v.  Coddington  .    . 

47 

Eastman  v.  Clarke 

60 

Bennett  v.  Judson  .    . 
Blair    v.  The    Bank   of 

20 

Ellis  v.  Page  .    .    . 

68 

Fenton  v.  Clark     . 

62 

Tennessee    .... 

56 

Fitchburg    R.R.    Co. 

V 

Bleecker  v.  Smith  .    . 

5 
33 

Gage 

24 
48 

Brooks  v.  White     .    . 

Foster  v.  Robinson 

Burton  v.  Wilkeson  . 

10 

Fox  V.  Harding  .     . 

91 

Carpenter  v.  Branch 

23 

French  v.  Bank   of 

Co 

Carson  v.  Clark      .    . 

17 

LUMBIA 

64 
15 

Chicago,   Etc.,    R.R.   Co 

Gates  v.  Lounsbury 

V.  The  People  .    .    . 

23 

Gladfelter  v.  Walker 

26 

Clute  v.  Wiggin  .    .    . 

12 

Glover  v.  Whittenhall 

10 

CoNARD  V.  Atlantic  Ins 

Goodman  v.  Simonds 

45 

Co 

3 
3 

Grinnell  v.  Cook    . 

13 

56 

Coolidge  v.  Melvin     . 

Haines  v.  Dennett 

Xll 


LIST    OF    AMERICAN    CASES    CITED. 


Page. 

Hamilton  v.  Russell  .     .  3 

Haaves  v.  Trafton  ...  85 

Hilton  v.  Adams      ...  12 

Hooper  v.  Cummings   .    .  5 

HoPKiRK  V.  Page      ...  64 

House  v.  Adams  ....  64 

Ingalls  v.  Herrick     .    .  3 

Insurance  Co.  v.  Bailey,  ti 
Insurance  Co.  v.  Eggles- 

TON 94 

Jackson  v.   Allen  ...  5 

Jacobs  v.  Pollard  ...  86 

Kent  v.  Kent 29 

King  v.  Despard      ...  29 

Lamoreaux  v.  Rolfe  .     .  96 

Lane  v.  King 48 

Lange  v.  Werk    .     .     .     •  39 

Leggett  v.  Hyde     ...  60 

LiNDLEY    V.  HORTON        .      .  65 

Locke  v.  Stearns    ...  20 

Malcolm  v.  Spoor  ...  15 

Marston  v.  Marston  .    .  3 

Masury  v.  Southworth  .  8 

McAvoY  V.  Medina  ...  35 
McCoy  v.  Erie,  Etc.,  R.R. 

Co 24 

McKildoe  v.  Darracott,  5 

McLaughlin  v.  Waite     .  35 

Merrifield  v.  Cobleigh  .  5 
Michigan,    Etc.,   R.R.   v. 

McDONOUGH       ....  24 

Millard  v.  Barton     .    .  45 


Minor  v.  Staples    .    . 
Nat.    Bank    Green    Bay 

11.  Dearborn  .  .  . 
Oakes  v.  Cushing  .  . 
Occum    Co.    v.    Sprague 

M'f'g  Co 

Raymond     v.     Crown     & 

Eagle  Mills  .  .  , 
Reynolds    v.   Boston    »S: 

Maine  R.R.  Co.  .  . 
Rosenthal  v.  Mayhugh 
Ryan  v.  Dayton  .  .  . 
Salmon  v.  Bennett 
Sexton  v.  Wheaton  . 
Seymour  v.  Minturn  . 
Shaw  v.  Caler  .  .  . 
Smith  v.  Pi.ummer  .  . 
Smith  v.  Shepard  .  . 
Spencer  v.  Roper  .  . 
Steamboat  New  World 

V.  King 

Stuyvesant  7'.  Davis  . 
SuYDAM  V.  Jones  .  .  . 
Swasey  v.  Brooks  .  . 
Swift  v.  Tyson  .  .  . 
Thornton  v.  Appleton 
TiLSON  V.  Terwilliger 
Wadleigh  v.  Janorim  . 
Walling  v.  Potter  . 
Ward  v.  Allen  .  .  . 
White  v.  Austin  .  .  . 
Whitney  v.  Swett  .    . 


Page. 
13 


54 
17 

26 

So 

54 
92 
62 


J3 
80 

50 
92 


8 
8 
47 
56 
3 
70 
12 

37 

8 

68 


AN  EPITOME 

OF 

LEADING  COMMON  LAW  CASES. 

INTENDED    AS 

^  ffiuitie  to  *'5mitf)*s  iLcatimg  OTases/* 


TWYNNE'S    CASE. 

(S.  L.  C.  Vol.  L  p.  33.) 
(3  Coke  80.) 

Information  against  Twynne,  for  making  and  pub- 
lishing a  fraudulent  gift  of  goods.  Pierce  was  indebted 
to  Twynne  in  ;^400,  and  to  C  in  ;^200.  Pending  an 
action  by  C  against  Pierce,  Pierce,  being  possessed  of 
goods  to  the  value  of  ;^300,  by  deed  of  gift  conveyed 
them  to  Twynne  in  satisfaction  of  his  debt,  but  Pierce 
continued  in  possession  of  the  goods.  C  obtained 
judgment  against  Pierce,  and  issued  a  ji.  fa.,  and 
Twynne  resisted  execution. 

Resolved :  That  the  gift  was  fraudulent  within  13  Eliz. 
c.  5,  on  the  following  grounds  :  — 

1.  The  gift  was  perfectly  general. 

2.  The  donor  continued  in  possession. 

3.  It  was  made  in  secret. 

4.  It  was  made  pending  the  writ. 


2         AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

5.  There  was  a  trust  between  the  parties,  and  fraud 
is  always  clothed  with  a  trust. 

6.  The  deed  contained  that  the  gift  was  honestly  and 
truly  made,  which  was  an  inconsistent  clause. 


Notes. — The  rule  under  the  statute  of  13  Eliz.  c.  5,  is  that  all  gifts 
and  conveyances  of  either  chattels  or  of  land  made  for  the  purpose  of 
defeating  or  delaying  creditors  are  void  against  them  unless  made  upon 
a  valuable  consideration  and  bona  fide  to  some  person  without  notice  of 
the  fraud ;  and  it  should  be  observed  that  this  rule  applies  not  only  to 
creditors  to  whom  the  person  is  indebted  at  the  time,  but  also  imme- 
diately afterwards  to  such  an  extent  that  he  has  not  sufficient  exclusive 
of  the  property  so  disposed  of  to  pay  such  debts.  Of  course,  although 
a  conveyance  may  be  fraudulent  under  the  statute,  yet  as  between  the 
parties  themselves  it  may  be  good.  The  above  case  was  not  decided  on 
the  ground  that  there  was  no  consideration,  for  the  debt  was  a  sufficient 
consideration,  but  on  the  ground  that  it  was  not  bond  fide.  A  debtor 
has  a  right  to  prefer  one  creditor  to  another  ;  but  he  must  do  so  openly, 
for  the  law  will  not  allow  a  creditor  to  make  use  of  his  demand  to 
shelter  the  debtor,  and  while  he  leaves  him  in  statu  quo  by  forbearing 
to  enforce  the  assignment,  to  defeat  the  other  creditors  by  insisting  on 
it.  It  may  be  observed  that  the  enactments  contained  in  13  Eliz.  c.  5 
are  simply  declaratory  of  the  Common  Law. 

In  questions  as  to  voluntary  conveyances,  there  are  three  statutes 
upon  which  the  answer  may  depend,  firstly,  the  above  statute,  by  which 
the  voluntary  conveyance  may  be  bad  as  being  fraudulent ;  secondly,  the 
27  Eliz.  c.  4,  by  which  all  voluntary  conveyances  of  land  are  void  against 
subsequent  purchasers  for  value;  and,  thirdly,  the  Bankruptcy  Act,  1S69 
(32  &  33  Vict.  c.  71),  s.  91. 

A  very  extreme  instance  of  a  settlement  being  held  bad  within 
13  Eliz.  c.  5,  is  to  be  found  in  the  case  of  Ex  parte  Stephens,  re  Pearson, 
L.  R.  3  Ch.  Div.  807.  In  that  case  John  Pearson  (who  was  not  then  a 
trader)  in  the  year  1858  made  a  voluntary  settlement  of  ^1,000  for  him- 
self for  life  or  until  bankruptcy,  and  after  his  decease,  for  his  wife  for 
her  life,  and  then  for  the  children  of  the  marriage.  Afterwards,  viz.,  in 
1875,  ^^  ^^'^^  adjudicated  bankrupt.  It  was  held,  that,  notwithstanding 
the  lapse  of  so  long  a  time,  the  settlement  was  void  as  being  a  fraud 
acrainst  creditors. 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.  3 

A  disposition  of  a  man's  goods  otherwise  than  by  delivery  is  ordi- 
narily termed  a  Bill  of  Sale,  —  an  instrmnent  which  is  now  in  various 
particulars  governed  by  the  Bills  of  Sale  Act,  1878  (41  &  42  Vict.  c.  31), 
[and  in  the  United  States  by  the  statutes  of  the  various  States.]  It  has 
been  held,  that,  if  the  formalities  pr^cribed  by  the  Act  are  not  observed, 
the  effect  is  not  to  render  the  instrument  absolutely  void,  but  only  bad 
as  against  execution  creditors  and  trustees  in  bankruptcy  and  liquidation 
proceedings,  and  under  assignments  for  the  benefit  of  creditors.  (Datu's 
V.  Goodma7i,  L.  R.  5  C.  P.  Div.  12S.) 

Questions  of  whether  a  Bill  of  Sale  is  fraudulent  and  void  most  fre- 
quently arise  in  the  bankruptcy  of  the  giver. 

[There  is  some  confusion  among  the  authorities  in  this  country  upon 
the  question  of  fraudulent  gifts  and  conveyances.  But  every  transfer  of 
property  not  made  upon  a  valuable  consideration  is  void  as  against  ex- 
isting creditors ;  and  voluntary  transfers  of  property  to  a  wife  or  child, 
made  with  a  view  to  entering  into  some  hazardous  business,  or  with  a 
fraudulent  intent  as  to  subsequent  creditors,  is  invalid  as  to  them.  But 
if  the  gift  be  a  reasonable  provision,  and  is  only  a  portion  of  the  donor's 
estate,  it  will  be  held  valid.  [Sexton  v.  VVhcaton,  8  Wheat.  229;  Salmon 
V.  Bennett,  i  Conn.  525 ;  Marston  v.  Marston,  54  Maine  476.) 

An  absolute  Bill  of  Sale,  unaccompanied  by  possession,  is  a  fraud 
against  creditors,  and  should  be  so  declared.  (Hamilton  v.  Russell, 
I  Cranch  109.)  But  where  the  sale  is  conditional,  continued  possession 
is  not  fraudulent.     {Canard  \.  Atlantic  Ins.  Co.,  i  Peters  (U.S.)  389.) 

If  it  appears  from  the  evidence  that  there  was  a  use  reserved  to  the 
vendor,  fraud  is  a  legal  inference.  {Coolidge  v.  Melvin,  i,z  N.H.  510.) 
But  the  doctrine  of  Massachusetts,  followed  by  most  of  the  States,  makes 
continued  possession  as  evidence  of  fraud  a  question  for  the  jury.  (/«- 
galls  V.  Herrick,  108  Mass.  351);  Davis  v.  Turne7;  4  Grattan  422;  Td- 
son  V.  Terwilligei-,  56  N.Y.  273.)  Kentucky,  Illinois,  Indiana  and 
Alabama  follow  the  doctrine  of  the  Federal  Court ;  and  New  York, 
Pennsylvania,  Connecticut  and  Vermont  make  no  distinction  between 
absolute  and  conditional  sales.] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


DUMPOR'S   CASE. 

(S.  L.  C.  Vol.  I.  p.  93.) 
(4  Coke  119.) 

Decided:  That  where  there  is  a  covenant  not  to  alien 
without  Hcense,  and  that  Hcense  is  once  given,  the 
license  applies  to  all  future  acts  of  a  like  nature,  so 
that  no  alienation  afterwards,  though  without  license, 
is  a  breach  of  the  covenant. 

Notes.  —  The  following  was  the  practical  working  of  the  extraordinary 
doctrine  laid  down  in  this  case :  A  makes  a  lease  to  B,  who  covenants 
not  to  assign  without  the  license  of  A.  A  grants  a  license  to  B  to  assign 
to  C,  and  afterwards,  notwithstanding  the  covenant,  the  term  can  be 
assigned  to  any  one.  The  ground  of  the  doctrine  was  that  every  con- 
dition of  re-entry  is  entire  and  indivisible,  and  the  condition,  having 
been  waived  once,  could  not  be  enforced  again.  Recent  legislation  has 
altered  this  doctrine,  it  being  enacted  by  22  &  23  Vict.  c.  35,  s.  i,  that 
every  such  license  shall,  unless  otherwise  expressed,  extend  only  to  the 
permission  actually  given,  or  the  actual  matter  thereby  specifically 
authorized  to  be  done,  unless  otherwise  specified.  The  subject  of  an 
actual  waiver  of  a  covenant  —  e.g.,  where  a  landlord,  knowing  of  a  breach 
of  covenant,  received  rent — may  here  be  noticed,  for  which  the  above 
enactment  did  not  provide.  An  actual  waiver  of  a  breach  of  a  covenant 
destroyed  the  condition  of  re-entry ;  but  23  &  24  Vict.  c.  38,  s.  6,  enacts 
that  any  actual  waiver  of  a  breach  of  covenant,  taking  place  after  the 
passing  of  that  Act  (July  23,  i860),  shall  not  be  deemed  to  extend  to 
any  breach  of  covenant  or  condition  other  than  that  to  which  such 
waiver  shall  specially  relate,  nor  to  be  a  general  waiver  of  the  benefit 
of  any  such  covenant  or  condition,  unless  an  intention  to  that  effect 
shall  appear. 

[The  right  of  re-entry  for  breach  of  condition  is  a  chose  in  action 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.         5 

and  is  not  assignable.  {Hooper  v.  Cuvimings,  45  Maine  359.)  A  cov- 
enant not  to  do  a  certain  act  upon  the  premises  conveyed,  without  a 
license  from  the  grantor,  is  a  condition  imposed  upon  the  covenantee 
for  the  benefit  of  the  covenantor ;  and  if  the  condition  is  susceptible  of 
breach  by  a  single  act,  and  the  grantor  gives  an  express  license  permit- 
ting the  act  to  be  done,  his  right  to  re-enter  for  future  acts  done  without 
a  license  is  gone  forever.  {Bleecker  v.  Smith,  13  Wend.  530 ;  McKildoe 
V.  Darracott,  13  Grattan  278;  Merrifield\.  Cobleigh,  4  Cush.  178.) 

But  affirmative,  continuing  covenants  may  be  impliedly  waived  by 
accepting  rent,  or  the  landlord  doing  some  act  recognizing  the  relation 
of  lessor  and  lessee  as  still  subsisting,  or  failure  on  the  part  of  the 
grantor  to  take  advantage  of  forfeiture  for  a  long  time.  But  rent  must 
be  accepted  after  forfeiture  and  have  accrued  as  such,  and  the  lessor 
must  have  had  knowledge  of  the  forfeiture  to  bar  the  right  to  re-enter. 
{Jackson  V.  Allen,  3  Cowen  220 ;  Hooper  v.  Cummings,  supra ;  Sttiyvesant 
V.  Davis,  9  Paige  (N.Y.  427).] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


SPENCER'S   CASE. 

(S.  L.  C.  Vol.  I.  p.  137.) 
(5  Coke  16.) 

This  was  an  action  of  covenant  by  the  lessors  of 
certain  property  against  the  assignees  thereof,  for  not 
building  a  wall  upon  the  property  as  the  original  lessee 
had  covenanted  to  do.  The  principal  discussion  in  the 
case  was  as  to  what  covenants  would  run  with  the  land  ; 
and  the  following  were  the  chief  points  decided  :  — 

1.  That,  where  the  covenant  extends  to  a  thing  in  esse 
parcel  of  the  demise,  the  covenant  is  appurtenant  to  the 
thing  demised,  and  binds  the  assignee  without  express 
words,  as  if  the  lessee  covenants  to  repair  the  house 
demised  to  him,  during  the  term  ;  but  not  so,  if  the 
thing  is  not  in  being  at  the  time  of  the  demise. 

2.  That  where  the  lessee  covenants  for  himself  ''and 
Ids  assigns,"'  to  do  some  act  tipon  the  thing  demised, 
though  not  in  existence  at  the  time  of  the  demise, 
there,  forasmuch  as  it  is  to  be  done  upon  the  land 
demised,  that  binds  the  assignee. 

3.  But  even  though  the  lessee  covenant  for  himself 
"  a?id  his  assigns,"  yet  if  the  thing  to  be  done  be  merely 
collateral  to  the  land,  and  does  not  in  any  way  touch  or 
concern  the  thing  demised,  there  the  assignee  cannot 
be  charged. 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.         7 

Notes.  —  This  case  shows  the  nature  of  the  covenants  which  will 
run  with  the  land,  by  which  is  meant  those  covenants  as  to  which  either 
the  liability  to  perform  them,  or  the  right  to  take  advantage  of  them, 
passes  to  the  assignee  of  the  land.  The  better  opinion  is,  that  at  com- 
mon law  covenants  ran  with  the  land,  but  not  with  the  reversion,  which 
rule  proceeded  upon  the  doctrine  that  though  an  estate  could  be 
assigned,  a  contract  could  not;  so  that,  for  instance,  if  a  lessee  cov- 
enanted to  keep  his  house  in  repair,  and  the  lessor  then  sold,  he  could 
not  assign  the  benefit  of  the  covenant,  so  that  on  breach  of  covenant 
by  tenant  the  new  landlord  could  not  bring  an  action  in  his  own  name, 
but  all  he  could  do  would  be  to  obtain  permission  from  the  original 
lessor  to  bring  it  in  his  name.  Of  course,  this  is  no  longer  so,  for  the 
statute  of  32  Hen.  8,  c.  34,  whilst  confirming  the  common  law,  that  the 
benefit  of  covenants  relating  to  the  land  entered  into  by  the  lessor  will 
pass  to  the  assignee,  alters  the  common  law  by  enabling  the  assignee  of 
the  reversion  to  take  advantage  of  the  covenants  entered  into  by  the 
lessee  with  the  lessor  from  whom  such  assignee  claims. 

The  reason  of  the  passing  of  the  statute  of  32  Hen.  8,  c.  34,  was, 
that  at  the  time  of  the  Reformation,  when  a  large  part  of  the  Church 
lands  fell  into  lay  hands,  the  inconvenience  of  the  law  attracted  notice, 
for  it  pressed  hardly  on  the  grantees  from  the  Crown  of  the  lands  of 
the  dissolved  monasteries,  and  whilst  the  enactment  was  specially  cre- 
ated for  their  benefit,  it  was  also  made  to  apply  to  the  whole  public. 
(Elphinstone's  "Conveyancing,"  pp.  22S,  231.) 

The  Conveyancing  and  Law  of  Property  Act,  18S1  (44  &  45  Vict. 
c.  41),  with  regard  to  leases  made  after  Jan.  i,  1882,  also  contains  pro- 
visions on  this  subject  which  are  no  doubt  intended  to  enlarge  the 
provisions  of  the  above-mentioned  old  statute.  The  enactments  referred 
to  are  as  follows :  "  Rent  reserved  by  a  lease  and  the  benefit  of  every 
covenant  or  provision  therein  contained,  having  reference  to  the  subject- 
matter  thereof,  and  on  the  lessee's  part  to  be  observed  and  performed, 
and  every  condition  of  re-entry  and  other  conditions  therein  contained, 
shall  be  annexed  and  incident  to,  and  shall  go  with,  the  reversionaiy 
estate  in  the  land,  or  in  any  part  thereof,  immediately  expectant  on  the 
term  granted  by  the  lease,  notwithstanding  severance  of  that  reversion- 
ary estate,  and  shall  be  capable  of  being  recovered,  reclaimed,  enforced 
and  taken  advantage  of  by  the  person  from  time  to  time  entitled,  subject 
to  the  term,  to  the  income  of  the  whole  or  any  part,  as  the  case  may 
require,  of  the  land  leased."  (Sect.  10.)  "The  obligation  of  a  cove- 
nant entered  into  by  a  lessor  with  reference  to  the  subject-matter  of  the 


8        AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

lease,  shall,  if  and  as  far  as  the  lessor  has  power  to  bind  the  reversionary 
estate  immediately  expectant  on  the  term  granted  by  the  lease,  be 
annexed  and  incident  to,  and  shall  go  with,  that  reversionary  estate,  or 
the  several  parts  thereof,  notwithstanding  severance  of  the  reversionary 
estate,  and  may  be  taken  advantage  of  and  enforced  by  the  person  in 
whom  the  term  is  from  time  to  time  vested  by  conveyance,  devolution  in 
law,  or  otherwise ;  and  if  and  as  far  as  the  lessor  has  power  to  bind  the 
person  from  time  to  time  entitled  to  that  reversionary  estate,  the  obliga- 
tion aforesaid  may  be  taken  advantage  of,  and  enforced  against  any 
person  so  entitled."     (Sect,  ii.) 

As  to  covenants  running  with  the  land  in  other  cases  than  those 
between  landlord  and  tenant.  Those  made  with  the  owner  of  the  land 
to  which  they  relate  may  be  taken  advantage  of  by  each  successive  trans- 
feree of  the  land  to  which  they  relate,  provided  he  be  in  of  the  same 
estate  as  the  original  covenantee  was ;  but  as  to  those  entered  into  by 
the  owner  of  the  land  to  which  they  relate,  it  seems  they  do  not  run 
with  the  land,  but  bind  only  the  original  covenantor,  for  if  they  bound 
transferees,  they  would  frequently  find  themselves  liable  on  contracts  of 
which  they  were  ignorant,  and  which  would,  if  they  had  known  of  them, 
have  deterred  them  from  purchasing 

[In  this  country  covenants  for  title  run  with  the  land  to  heirs  and 
assigns  until  breach ;  but  those  which  stipulate  for  a  particular  state 
of  things  in  the  present  are  mere  personal  obligations. 

Covenants  for  warranty,  quiet  enjoyment,  to  pay  rent  and  ta.xes,  and 
those  beneficial  to  the  land,  attach  themselves  thereto,  and  run  with  it. 

A  covenant  to  insure  the  premises  demised,  the  lessee  to  have  the 
benefit  of  the  insurance  for  the  purpose  of  rebuilding,  in  case  of  fire, 
was  held  to  run  with  the  land,  it  being  beneficial  to  both  lessor  and 
lessee.  {Masiiry  v.  Soiithworth,  9  Ohio  St.  340.)  An  agreement  to 
assume  a  mortgage  upon  the  premises  conveyed  cannot  be  set  up  as  a 
bar  to  a  recovery  upon  covenants  of  warranty  and  quiet  enjoyment 
against  an  assignee  of  the  covenantee.  Nor  is  the  assignee  affected  by 
notice  of  the  existence  of  a  mortgage  at  the  time  of  conveyance  to  him. 
(Siiydam  v.  Jones,  10  Wend.  180.)  But  covenants  for  seisin  are  broken, 
if  at  all,  upon  the  execution  of  the  deed  containing  them.  They  are 
merely  personal  obligations,  and  are  not  assignable.  {Swasey  v.  Brooks, 
30  Vt.  692.)  A  covenant,  running  with  the  land,  made  by  a  mortgagor 
in  conveying  his  equity  of  redemption,  attaches  itself  to  such  an  estate, 
in  those  States  where  a  mortgagee  holds  the  legal  title.  {White  v.  Austin, 
3  Met.  81).] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.         9 


SEMAYNE'S    CASE. 

(S.  L.  C.  Vol.  I.  p.  228.) 
(5  Coke  91.) 

The  following  were  the  most  important  points  re- 
solved in  this  case  :  — 

1.  It  is  not  lawful  for  the  sheriff,  at  the  suit  of  a 
common  person,  to  break  the  defendant's  house  to  exe- 
cute process,  but,  if  a  defendant  flies  to  or  removes 
his  goods  to  another  man's  house,  the  privilege  does 
not  extend  to  protect  him  there,  and,  after  denial  on 
request  made,  the  sheriff  may  break  the  house. 

2.  In  all  cases  where  the  king  is  party  the  sheriff 
may  break  the  defendant's  house,  after  request  to  open 
the  doors. 

3.  Where  a  house  is  recovered  in  a  real  action,  the 
sheriff  may  break  the  house  to  deliver  possession. 

JSfotes.  —  It  must  be  remembered,  that,  although  the  sheriff  is  justified 
in  entering  a  third  party's  house  to  execute  process  of  the  law  upon 
defendant  or  his  property,  yet  if  it  happen  that  defendant  be  not  there, 
or  have  no  property  there,  the  sheriff  is  a  trespasser.  When  the  sheriff 
has  once  obtained  entry,  he  can  break  open  the  inner  doors ;  and,  where 
a  defendant  after  arrest  escapes,  the  sheriff  may  break  his  house,  or  the 
house  of  any  person  to  which  he  escapes,  to  retake  him. 

[A  demand  and  refusal  must  be  made  by  an  officer  before  he  can 
lawfully  break  open  the  outer  door  of  a  building  to  levy  attachment  or 
make  arrest. 

Where  an   officer   lawfully  entered  the   house   of  the   plaintiff   and 


10     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

arrested  him,  and  the  plaintiff  broke  away  from  the  officer  and  thrust 
him  out  of  doors,  it  was  held  that  a  demand  by  the  officer  for  entry  into 
the  house,  on  his  return  to  arrest  the  plaintiff,  would  have  been  a  sense- 
less ceremony,  and  that  the  officer  was  justified  in  breaking  open  the 
outer  door.  (Allen  v.  Ma7-tiu,  lo  Wend.  301.)  A  demand  by  an  officer 
upon  persons  in  charge  of  a  warehouse,  for  admission  to  levy  attachment 
on  goods  therein,  was  held  to  be  sufficient  to  justify  the  officer  in  break- 
ing the  outer  door  of  the  warehouse.  (Burton  v.  Wilkeson,  18  Vt.  186.) 
Where  an  officer  had  made  a  partial  levy  upon  goods  of  the  defendant 
within  his  house,  and  was  resisted  by  the  latter  while  trying  to  gain 
admission  to  the  house  for  the  purpose  of  completing  the  levy,  he  was 
held  to  he  justified  in  bursting  open  the  outer  door  for  said  purpose. 
(Glover  v.  Whittenhall,  6  Hill  (N.Y.)  597).] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      II 


CALYE'S   CASE. 

(S.  L.  C.  Vol.  I.  p.  241.) 
(8  Coke  32.) 

Resolved:  That  if  a  man  comes  to  a  common  inn, 
and  delivers  his  horse  to  the  hostler,  and  requires  him 
to  put  him  to  pasture,  which  is  done,  and  the  horse  is 
stolen,  the  innkeeper  shall  not  answer  for  it.  To 
charge  an  innkeeper  on  the  custom  or  common  law  of 
the  realm  for  the  loss  of  goods  :  (i)  The  inn  ought  to 
be  a  common  inn.  (2)  The  party  ought  to  be  a  trav- 
eller or  passenger.  (3)  The  goods  must  be  in  the  inn 
(and  for  this  reason  the  innkeeper  is  not  bound  to 
answer  for  a  horse  put  out  to  pasture).  (4)  There  must 
be  a  default  on  the  part  of  the  innkeeper  or  his  ser- 
vants in  the  safe  keeping  of  the  guest's  goods.  (5) 
The  loss  must  be  to  movables,  and  therefore  if  a  guest 
be  beaten  at  an  inn,  the  innkeeper  shall  not  answer 
for  it. 


Notes.  —  An  inn  is  defined  as  "  a  house  where  the  traveller  is  fur- 
nished with  every  thing  he  has  occasion  for  on  his  way."  An  innkeeper 
is  defined  as  "  one  who  professes  to  supply  lodgings  and  provisions  for 
the  night,  for  all  comers  who  are  ready  to  pay  therefor,"  and  he  is 
bound  to  receive  a  traveller  into  his  house  and  provide  properly  for  him 
upon  his  tendering  a  reasonable  price  for  the  same,  unless,  indeed,  the 
traveller  is  drunk  or  suffers  from  a  contagious  disorder.  If  the  inn- 
keeper fails  in  his  duty,  he  may  be  indicted  at  common  law,  or  is  liable 


12      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

to  an  action.  {Fell  v.  Knight,  lo  L.  J.  (Ex )  277.)  A  person  who  pro- 
fesses to  let  private  lodgings  only,  or  to  supply  provisions  only,  is  not 
an  innkeeper :  and  if  a  man  come  to  an  inn  on  a  special  contract  to 
board  and  lodge  there,  the  law  does  not  consider  him  as  a  guest,  but  as 
a  boarder.  At  common  law  an  innkeeper  was  liable  for  all  losses, 
unless  they  arose  through  the  act  of  God,  the  king's  enemies,  or  the 
fault  of  the  guest  or  his  servant ;  but  now,  by  26  &  27  Vict.  c.  41,  an  inn- 
keeper is  not  liable  to  make  good  any  loss  of,  or  injury  to,  goods  (not 
being  a  horse  or  other  live  annual,  or  gear  appertaining  thereto,  or  any 
carriage),  beyond  £Tp,  except  (i)  Where  stolen,  lost,  or  injured,  through 
the  wilful  neglect  or  default  of  the  innkeeper,  or  any  servant  in  his 
employ;  or  (2)  Where  the  goods  are  deposited  expressly  with  him  for 
safe  custody ;  but  to  entitle  the  innkeeper  to  the  benefit  of  the  Act  a 
printed  copy  of  section  i  must  be  exhibited  in  a  conspicuous  part  of  the 
hall  or  entrance  to  the  inn. 

An  innkeeper,  if  his  bill  is  not  paid,  though  he  cannot  detain  his 
guest's  person,  has  a  lien  on,  and  may  detain,  goods  intrusted  to  his 
charge,  though  they  are  not  the  guest's  property  ( Threlfall  v.  Barwick, 
L.  R.  7  Q  B.  711,  but  see,  as  explaining  and  limiting  this,  Broadwood  \. 
Granara,  L.  R.  10  Ex.  417).  And  with  regard  to  carriages,  horses,  &c., 
the  innkeeper's  lien  is  not  limited  to  the  charge  for  the  care  of  the  car- 
riages and  keep  of  the  horses,  but  extends  to  the  whole  charges  against 
the  guest.  [MidUnger  v.  Florence,  26  W.  R.  385.)  An  innkeeper  hav- 
ing a  lien  has  now  a  power  given  him  of  actively  enforcing  it,  it  being 
provided  by  the  Innkeepers  Act,  1S78  (41  &  42  Vict.  c.  38),  that  if  a  per- 
son shall  become  indebted  to  him  and  shall  deposit  or  leave  any  personal 
effects  with  him  or  in  his  inn  or  adjacent  jjremises  for  the  space  of  six 
weeks,  the  innkeeper,  after  having  advertised  a  month  previously  in  one 
London  newspaper  and  one  country  newspaper  circulating  in  the  district, 
a  notice  describing  the  goods,  and  giving  (if  known)  the  name  of  the 
owner  or  person  who  deposited  the  goods,  and  of  his  intention  to  sell, 
may  duly  sell  the  same  by  public  auction.  Any  surplus  after  paying  the 
debts  and  expenses  is  to  be  handed  to  the  person  who  left  or  deposited 
the  goods. 

[The  relation  of  innkeeper  and  guest  exists  if  one  takes  his  meals  at 
the  inn,  but  does  not  reside  there,  even  though  he  lives  within  the  same 
town.  {Walling  \.  Potter,  35  Conn.  183.)  Goods  within  the  out-build- 
ings, and  cattle  within  the  yards  belonging  to  the  inn,  which  are  the 
property  of  travellers  stopping  at  the  inn,  are  within  the  protection  of  the 
rule.     {Clute  v.  Wiggin,  14  Johns.  175;  Hilton  v.  Adams,  71  Maine  19.) 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.       1 3 

An  innkeeper,  as  such,  is  not  lialjle  to  one  who  sciuh  his  horses  to 
the  stable  of  the  inn  to  be  kept  and  fed,  the  owner  taking  and  using 
them  at  his  pleasure.  {G7-inneU  v.  Cook,  6  Hill  485  )  Nor  is  he  liable 
to  a  guest  for  goods  stolen  from  the  latter  from  a  sea-bathing  house 
belonging  to  the  former.  {Minor  v.  Staples,  71  Me.  316.)  He  is  not 
liable  for  injuries  committed  by  his  servants  upon  his  guests,  unless  he 
co-operates  with  or  consents  to  the  acts.] 


14     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


THE   SIX   CARPENTERS'    CASE. 

(S.  L.  C.  Vol.  I.  p.  274.) 
(8  Coke  146  a.) 

Here  six  carpenters  entered  a  tavern,  and  were  served 
with  wine,  for  which  they  paid :  they  were  afterwards, 
at  their  request,  served  with  bread  and  more  wine,  for 
which  they  then  refused  to  pay.  Trespass  was  on 
these  facts  brought  against  the  six  carpenters,  and  the 
only  point  in  the  case  was,  whether  the  non-payment 
made  the  entry  into  the  tavern  tortious.  It  was  re- 
solved :  (i)  That,  if  a  man  abuse  an  authority  given  by 
the  law,  he  becomes  a  trespasser  (td  initio;  but  (2) 
Where  the  authority  is  given  by  the  party  and  abused, 
there  he  is  not  a  trespasser  ab  initio,  but  he  must  be 
punished  for  his  abuse ;  (3)  That  non-feasance  only, 
cannot  make  the  party  who  has  the  license  by  law  a 
trespasser  ab  initio,  and  therefore  in  this  case  the  mere 
non-payment  did  not  make  the  carpenters  trespassers 
ab  initio. 

Notes.  —  The  rule  laid  down  in  this  case,  that  a  man  abusing  an 
authority  given  him  by  the  law  becomes  a  trespasser  ab  initio,  formerly 
applied  to  a  distress ;  but  now  if  any  irregularity  occurs  in  making  a 
distress,  if  any  rent  is  justly  due,  the  distrainer  is  not  a  trespasser  ab 
initio.  (11  Geo.  2,  c.  19,  s.  10.)  (See  further,  as  to  distress, /^j/,  pp. 
40,  41.) 

[An  intention  to  do   an    unhwful    act    is   mutable.     And   a   plea   of 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.       1 5 

justification  to  an  action  for  assault  and  battery,  that  the  plaintiff  in 
tended  to  commit  an  unlawful  act,  is  bad.  {Gates  v.  Loinisbiiry,  20 
Johns.  427.) 

If  one  is  permitted  to  enter  the  house  of  another  for  the  purpose  of 
procuring  evidence  against  the  latter,  although  admission  be  gained  by 
deception,  yet  he  is  not  a  trespasser  ab  initio.     {Allen  v.  Crofoot,  5  Wend. 

507-) 

Where  a  constable  entered  the  plaintiff's  house  by  authority  of  law, 
and  placed  therein  an  intoxicated  keeper  in  charge  of  the  furniture, 
against  the  remonstrance  of  the  plaintiff,  he  was  held  liable  as  a  tres- 
passer ab  initio.     {Malcolm  v.  Spoor,  12  Met.  279.)] 


l6     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


LAMPLEIGH   v.    BRAITHWAITE. 

(S.  L.  C.  Vol.  I.  p.  280.) 

(HOBART    105.) 

Decided:  That  a  mere  voluntary  courtesy  will  not 
uphold  assumpsit,  for  to  do  so  it  must  be  moved  by  a 
precedent  request  of  the  party  who  gives  the  promise, 
for  then  the  promise  though  it  follows,  yet  is  not  alone, 
but  couples  itself  with  the  request.  Labor,  though 
unsuccessful,  may  form  a  valuable  consideration. 


Notes. — The  rule  requiring  a  valuable  consideration  to  support  a 
promise,  is,  of  course,  well  known,  and  needs  no  comment  in  these  notes ; 
but  it  will  be  useful  to  observe  here  that  such  a  consideration  consists  of 
either  "some  benefit  to  the  party  making  the  promise,  or  to  a  third 
person  by  the  act  of  the  promisee,  or  some  loss,  trouble,  inconvenience 
to,  or  charge  imposed  upon,  the  party  to  whom  the  promise  is  made." 

Considerations  which,  with  reference  to  their  nature,  are  divided  into 
good  and  valuable,  are  also,  with  reference  to  time,  denoted,  executed, 
executory,  contemporaneous,  and  continuing.  An  executed  consideration 
will  not  support  an  action  unless  founded  upon  a  previous  request,  ex- 
pressed or  implied,  and  this  previous  request  will  be  implied  in  certain 
cases,  of  which  the  following  are  the  chief: — ■ 

1.  Where  plaintiff  has  been  compelled  to  do  that  which  defendant 
ought  to  have  done,  and  was  compellable  to  do. 

2.  Where  plaintiff  has  voluntarily  done  that  which  defendant  was 
legally  compellable  to  do,  and,  in  consideration  thereof,  the  latter  has 
afterwards  expressly  promised  to  repay  or  to  indemnify  him. 

3.  Where  defendant  has  taken  the  benefit  of  the  consideration. 

4.  Where  the  plaintiff  has  voluntarily  done  some  act  for  the  defendant 
which  is  for  the  public  good,  e.g.,  in  paying  the  expenses  of  burying  a 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.       1/ 

person  in  the  absence  of  the  one  legally  liable  to  pay  the  same.  (Inder- 
maur's  "  Principles  of  the  Common  Law,"  Am.  ed.  pp.  17,  37,  38,  39.) 

[In  cases  like  the  principal  case  there  is  no  privity  between  the  parties. 
A  party  conferring  a  benefit  upon  another  either  intends  it  as  gratuitous, 
or  confers  it  without  the  knowledge  of  the  latter. 

The  defendant  had  a  stack  of  wheat  in  the  plaintiff's  field,  and  was 
requested  by  the  latter  to  remove  it,  as  he  wished  to  burn  the  wheat- 
stubble,  to  which  the  defendant  assented,  but  failed  to  remove  the 
wheat :  whereupon  the  plaintiff  removed  it  for  safety,  and  brought  an 
action  to  recover  for  the  service,  which  was  held  to  be  gratuitous.  {Bar- 
tJiolomew  v.  yacksoii,  20  Johns.  28.) 

But  where  one  held  property,  as  security,  which  had  been  increased 
in  value  by  the  services  of  another,  he  was  allowed  to  recover  the  value 
of  them  from  the  former  on  an  express  promise  made  by  him  to  the 
latter.  The  increased  value  of  the  security  was  a  sufficient  considera- 
tion, which  coupled  itself  to  the  subsequent  promise.  {Oakes  v.  Gushing, 
24  Maine  313.) 

The  defendant  purchased  lands  which  had  been  improved  by  the 
plaintiff,  and  promised  to  pay  him  for  the  improvements.  It  was  held 
that  there  was  no  consideration  for  the  promise.  {^Carson  v.  Clark, 
I  Scam.  (111.)  113.)] 


1 8      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES, 


CHANDELOR   v.    LOPUS. 

(S.  L.  C.  Vol.  I.  p.  299.) 
(2  Coke  2.) 

The  defendant  sold  to  the  plaintiff  a  stone  which  he 
affirmed  to  be  a  Bezoar  stone,  but  which  proved  not  to 
be  so.  This  action  was  brought  upon  the  case  ;  and, 
on  error  being  brought,  it  was  held  that  no  action  lay 
against  defendant,  unless  he  either  knew  that  it  was 
not  a  Bezoar  stone,  or  warranted  it  to  be  a  Bezoar 
stone. 


PASLEY   V.    FREEMAN. 

(S.  L.  C.  Vol.  II.  p.  92.) 
(3  T.  R.  51.) 

Decided:  That  a  false  affirmation  made  by  the  de- 
fendant with  intent  to  defraud  the  plaintiff,  whereby 
the  plaintiff  receives  damage,  is  ground  for  an  action 
upon  the  case  in  the  nature  of  deceit.  In  such  an  ac- 
tion, it  is  not  necessary  that  the  defendant  should  be 
benefited  by  the  deceit,  or  that  he  should  collude  with 
the  person  who  is. 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.       1 9 

Notes  on  the  tivo  foregoing  Cases.  —  These  two  cases  are  placed  to- 
gether as  being  slightly  connected ;  but  although  this  is  so,  the  differ- 
ences between  them  are  obvious,  for  the  case  of  Chandelor  v.  Lopus 
touches  as  well  on  the  point  of  warranty,  whilst  Pasley  v.  Freeman  only 
deals  with  the  nature  of  the  false  affirmation  that  will  support  an  action 
of  deceit.  A  warranty  may  be  defined  as  "  an  undertaking,  express  or 
implied,  arising  or  given  on  the  sale  of  goods  or  chattels."  On  the  ques- 
tion of  what  amounts  to  a  warranty,  it  may  here  be  noticed  that  "every 
affirmation  at  the  time  of  sale  of  personal  chattels  is  a  warranty,  pro- 
vided it  appears  to  have  been  so  intended."  A  warranty  which  is  made 
subsequently  to  a  sale  is  invalid  for  want  of  consideration,  unless  in- 
deed, made  upon  some  fresh  consideration.  As  to  the  remedy  of  the 
vendee  of  a  chattel  on  breach  of  warranty,  he  cannot  return  it  and  re- 
cover the  price  if  it  is  some  specific  article  sold,  though  he  may  if  the 
warranty  is  in  respect  of  manufactured  goods  never  completely  accepted, 
and  provided  he  has  only  given  the  article  a  fair  trial.  So  also  a  pur- 
chaser may  return  goods  sold  according  to  sample  if  they  prove  not  to 
agree  with  the  sample.  In  all  cases  the  vendee  can  give  the  breach  in 
evidence  in  reduction  of  the  vendor's  claim,  or  may  bring  an  action 
against  him  for  the  breach. 

The  decision  in  the  case  of  Pasley  v.  Freeman  is  subject  to  the 
enactment  contained  in  9  Geo.  4,  c.  14,  s.  6:  "That  no  action  shall  be 
maintained  whereby  to  charge  any  person  upon,  or  by  reason  of,  any 
representation  or  assurance  made  or  given  concerning  or  relating  to  the 
character,  conduct,  credit,  ability,  trade,  or  dealings  of  any  other  person, 
, to  the  intent  or  purpose  that  such  other  person  may  obtain  'credit, 
money,  or  goods  upon,'  unless  such  representation  or  assurance  be  made 
in  writing  signed  by  the  party  to  be  charged  therewith." 

An  important  distinction  between  a  warranty  and  a  false  represen- 
tation arises  in  an  action  brought  in  respect  of  either ;  in  the  case  of  the 
breach  of  warranty  it  is  of  no  consequence  that  the  defendant  did  not 
know  of  the  defect  against  which  he  warranted ;  but  if  a  person  has  not 
actually  warranted  and  an  action  is  brought  on  his  false  representation, 
his  knowledge  of  its  falsity  must  of  course  be  shown. 

Bearing  in  mind  what  is  stated  above,  viz.  .  that  every  affirmation  at 
the  time  of  a  sale  of  personal  chattels  is  a  warranty  if  it  appears  to  have 
been  so  intended,  it  would  appear  that  Chandelor  v.  Lopns  can  hardly  be 
considered  good  law  at  the  present  day  ;  for  were  the  case  now  to  arise, 
such  a  statement  would,  no  doubt,  be  held  to  amount  to  a  warranty. 
(See  Indermaur's  "  Principles  of  the  Common  Law,"  Am.  ed.  97.) 


20     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES, 

[See  the  statutes  of  frauds  and  perjuries  of  the  different  States. 

A  warranty  is  part  of  the  contract  or  sale;  but  a  representation  is 
only  inducement  to  it.  [Daily  v.  Cree7t,  3  Harris  118.)  It  is  not  neces- 
sary to  prove  the  scienter  in  an  action  on  a  warranty.  (Bartholomew  v. 
Bushnell,  20  Conn.  271.)  A  false  representation  is  the  ground  for  an 
action  on  the  case,  when  it  is  a  statement  of  a  material  fact  made  by  one 
who  knows  it  to  be  false  to  another  who  does  not  know  of  its  falsity  and 
believes  it  to  be  true,  with  the  intention  that  the  latter  should  act  upon 
it,  and  who,  relying  upon  it,  does  so  act.  Knowledge  of  the  falsity  may 
be  conclusively  presumed  where  the  representation  is  one  peculiar  y 
within  the  knowledge  of  the  defendant. 

In  acting  upon  the  representation  the  plaintiff  must  exercise  the  con- 
duct of  a  prudent  man.  Where  a  false  representation  is  made  by  an 
agent,  which  is  unauthorized  by  the  principal,  or  who  has  not  received 
the  benefit  therefrom,  it  cannot  be  imputed  to  the  latter  in  an  action 
against  him  for  the  deceit  of  the  agent.  (Dennett  v.  Judson,  21  N.Y. 
238.     But  see  Locke  v.  Stearns,  i  Mete.  560.)] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      21 


COGGS  V.    BERNARD. 

(S.  L.  C.  Vol.  I.  p.  369.) 
(Lord  Raymond  909.) 

Here  the  defendant  had  promised  the  plaintiff  to  take 
up  several  hogsheads  of  brandy  then  in  a  certain  cel- 
lar, and  lay  them  down  again  in  a  certain  other  cellar, 
safely  and  securely ;  and  by  the  default  of  the  defend- 
ant one  of  the  casks  was  staved  and  a  quantity  of 
brandy  spilt.  Verdict  for  plaintiff  on  a  plea  of  not 
guilty,  and  on  motion  in  arrest  of  judgment,  Decided: 
That  if  a  man  undertake  to  carry  goods  safely  and 
securely,  he  is  responsible  for  any  damage  they  may 
sustain  in  the  carriage  through  his  neglect,  though  he 
was  not  a  common  carrier,  and  was  to  have  nothing  for 
his  pains.  Lord  Holt  here  classifies  bailments  as  fol- 
lows :  (i)  Depositinn,  or  a  naked  bailment  of  goods  to 
be  kept  for  the  use  of  the  bailor.  (2)  Commodatiim, 
where  goods  are  lent  to  the  bailee  gratis  to  be  used 
by  him.  (3)  Locatio  rei,  where  goods  are  lent  to  the 
bailee  for  hire.  (4)  Vadium,  pawn.  (5)  Locatio  opcris 
faciendi,  where  goods  are  delivered  to  be  carried,  or 
something  is  to  be  done  about  them,  for  a  reward  to  be 
paid  to  the  bailee.  (6)  Mandatum,  a  delivery  of  goods 
to  somebody  who  is  to  carry  them,  or  do  something 
about  them  gratis. 


22      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


WILSON    V.    BRETT. 

(II   M.  &  W.  113.) 

Decided:  That  a  party  who  rides  a  horse,  at  the  re- 
quest of  the  owner,  for  the  purpose  of  exhibiting  and 
offering  him  for  sale  without  any  benefit  to  himself,  is 
bound  to  use  such  skill  as  he  possesses  ;  and  if  proved 
to  be  conversant  with  and  skilled  in  horses,  he  is 
equally  liable  with  a  borrower  for  an  injury  done  to 
the  horse,  for  he  is  bound  to  use  the  skill  which  he 
possesses. 

Notei  on  the  two  foregoing  Cases.  —  These  two  cases  are  quoted  together, 
the  first  as  being  the  leading  case  on  the  subject,  and  showing  the  gen- 
eral principle  that  a  gratuitous  bailee  is  chargeable  only  when  guilty  of 
gross  negligence,  and  the  latter  as  somewhat  altering  that  general  prin- 
ciple by  deciding  that  if  the  gratuitous  bailee  is  in  such  a  situation  as 
to  imply  skill  in  what  he  undertakes  to  do,  an  omission  to  use  that  skill 
is  imputable  to  him  as  gross  negligence. 

In  considering  the  subject  of  bailments,  we  come  to  that  of  carriers. 
A  common  carrier  has  been  defined  as  "  a  person  who  undertakes  to 
transport  from  place  to  place  for  hire  the  goods  of  such  persons  as 
think  fit  to  employ  him."  At  the  common  law  carriers  were  insurers 
liable  for  all  losses,  except  those  arising  from  the  act  of  God,  or  of  the 
King's  enemies ;  and  to  obviate  this  liability  it  became  their  practice  to 
put  up  in  their  warehouses  notices  limiting  their  liability,  and  provided 
it  could  be  shown  that  a  customer  saw  such  notice,  this  was  usually  held 
to  create  a  contract  between  the  carrier  and  the  customer.  Statute 
I  Wm.  4,  c.  68,  provided  that  carriers  shall  not  be  liable  for  certain  valu- 
able articles  therein  specified,  such  as  gold,  silver,  pictures,  etc.,  above 
/lo,  unless  the  nature  and  value  of  the  article  were  declared,  and  an 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.       23 

increased  rate  of  charge  paid  or  agreed  to  be  paid  ;  and  that  the  car- 
rier may  demand  and  receive  an  increased  rate  to  be  duly  notified  in  his 
wai-ehonse.  No  general  notices  or  conditions  are  to  limit  the  carrier's 
liability,  but  nothing  in  the  Act  contained  is  to  prevent  a  special  con- 
tract. This  statute  does  not  protect  the  carrier  from  any  loss  arising 
from  the  felonious  act  of  any  servant  in  his  employ.  After  this  Act 
railway  companies  frequently  escaped  its  provisions  by  putting  notices 
on  the  receipts  given  to  persons  sending  goods,  and  this  was  held  to 
constitute  a  special  contract  between  the  parties  The  Railway  and  Canal 
Traffic  Act,  1854  (17  &  iS  Vict.  c.  31),  therefore,  provides  that  no  such 
contract  shall  be  of  effect  unless  signed  by  the  party  delivering  the  goods 
to  be  carried;  but  the  company  may  limit  its  liability  by  reasonable  con- 
ditions,—  the  reasonableness  of  such  conditions  to  be  decided  by  the 
judge  before  whom  the  matter  comes.  This  Act  also  exempts  com- 
panies from  liability  for  loss  of  (i)  horses  beyond  the  sum  of  ^50, 
(2)  neat-cattle  ^^15,  (3)  sheep  and  pigs  £2,  per  head,  unless  a  higher 
value  is  declared,  and  an  increased  rate  of  charge  is  paid  or  agreed  to 
be  paid.  It  has  been  decided  that  this  Act  does  not  apply  to  contracts 
made  by  railway  companies  exempting  themselves  from  liability  by  loss 
or  detention  beyond  their  own  lines.  {Znnz  v.  South  Eastern  Ky.  Co., 
L.  R.  4  Q.  B.  537.) 

A  common  carrier  is  bound  to  carrj-  all  goods  delivered  to  him  for 
carriage  provided  the  price  be  paid  or  tendered,  that  they  are  of  the 
nature  he  ordinarily  carries,  that  they  are  not  dangerous,  and  that  he  has 
room  in  his  vehicle.  If  a  person  delivers  dangerous  goods  to  a  carrier 
without  informing  him  of  their  dangerous  nature,  he  will  be  liable  for 
any  accident  arising  from  them  to  the  carrier,  or  those  who  are  concerned 
in  the  carriage.     {Farrantx.  Barnes,  ii  C.  B.  (N.S.)  553.) 

[A  gratuitous  passenger  on  board  of  a  steamboat  was  injured  by  the 
explosion  of  its  boiler,  and  was  allowed  to  recover  damages  from  the 
owner  of  the  boat  for  the  injuries  sustained.  (Steamboat  Nezv  World  v. 
A'ing,  16  How.,  U.S.  469.) 

In  the  case  of  Carpenter  v.  Branch,  13  Vermont,  161,  the  plaintiff 
and  defendant  agreed  to  exchange  horses  ;  but  before  doing  so  the 
defendant's  horse  was  attached  to  the  plaintiff's  carriage,  and  the  latter, 
at  the  request  of  the  former,  got  into  the  carriage  with  him.  The  defend- 
ant drove  the  horse  at  an  imprudent  rate  of  speed  while  turning  round 
and  broke  the  wagon,  and  was  obliged  to  pay  for  it. 

A  common  carrier  must  not  make  unjust  discrimination  in  the  rates 
of  compensation  for  carrying  freight  [Chicago  etc.  R.R.  Co.  v.  The  Peo- 


24     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

fie,  67  Illinois  11),  but  may,  for  special  reasons,  stipulate  with  parties, 
in  isolated  cases,  to  carry  freight  for  a  certain  time,  and  in  certain  quan- 
tities, for  less  compensation  than  is  usual.  {Fitchbiirg  K.R.  Co.  v.  Gage, 
12  Gray  393)  A  condition  in  a  bill  of  lading,  that  the  carrier  should 
not  be  liable  for  damage  to  or  deficiency  in  packages  after  they  had  been 
receipted  for,  was  held  not  to  apply  to  corn  in  bulk.  {McCoy  v.  Erie 
etc.  R.R.  Co.,  42  Md.  498.)  A  common  carrier  is  not  liable  for  loss  of 
live-stock  carried  over  its  railroad  unless  it  is  shown  by  the  plaintiff 
that  it  agreed  to  assume  the  care  and  risk  of  the  animals.  {Michigan 
etc.  R.R.  Co.  V.  McDonough,  21  Mich.  166.)  In  the  two  latter  cases,  the 
one  shows  the  need  of  distinct  terms  to  limit  the  carrier's  liability  by 
special  contract,  and  the  latter  indicates  that  the  carrier  of  live-stock  is 
not  an  insurer.] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      2$ 


ASHBY   V.    WHITE. 

(S.  L.  C.  Vol.  I.  p.  455.) 
(Lord  Raymond  938.) 

At  an  election  of  burgesses  for  Parliament,  the  plain- 
tiff, being  entitled  to  vote,  tendered  his  vote  for  two 
candidates  ;  but  such  vote  was  refused,  and  notwith- 
standing those  candidates  for  whom  the  plaintiff  ten- 
dered his  vote  were  elected,  yet  he  brought  this  action 
against  the  constables  of  the  borough  for  refusing  to 
admit  his  vote.  Decided:  That  action  was  maintain- 
able ;  for  it  was  an  injury,  though  without  any  special 
damage. 


Notes.  — The  above  case  decides,  that  although  a  person  has  suffered 
no  actual  or  real  damage,  yet  if  he  has  suffered  a  legal  wrong  or  injury, 
capable  in  legal  contemplation  of  being  estimated  by  a  jury,  an  action 
lies ;  but  the  decision  in  this  case  must  be  carefully  distinguished  from 
those  cases  in  which  a  damage  is  sustained  by  the  plaintiff,  but  a  dam- 
age not  occasioned  by  any  thing  which  the  law  considers  an  injury.  In 
such  cases  the  party  damaged  is  said  to  suffer  datttmim  sine  injuria,  and 
can  maintain  no  action.  See,  in  further  exemplification  of  the  above 
decision  and  these  remarks,  the  important  cases  of  Fray  v.  Voiiles 
(I  E.  &  E.  839),  and  Marzetti  v.  Williams  (i  B.  &  Ad.  415),  and  Mayne's 
"Treatise  on  Damages"  (2d  ed.,  pp.  415,  416).  (See  also  Indermaur's 
"  Principles  of  the  Common  Law,"  Am.  ed.  pp.  4,  5.) 

[There  are  two  classes  of  cases  where  damages  may  arise, — one, 
like  the  principal  case,  where  some  legal  right  has  been  violated ;  the 
other,  not  wrongful /^r  se,  but  where  some  injurious  consequence  follows 
from  the  act  done. 


26     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

Every  trespass  quare  clausum  is  a  wrong  in  itself  and  damages  are 
legally  implied  from  the  unlawful  entry  into  the  close. 

Where  one  polluted  the  water  of  a  stream  running  through  the  land 
of  another  by  putting  poisonous  substances  into  it,  an  injury  was  inferred 
from  the  violation  of  the  legal  right  to  have  the  water  run  in  a  pure 
state.  [Gladfelter  v.  Walker,  40  Md.  i.)  But  an  act  may  be  lawful  and 
only  become  a  wrong  as  the  result  of  negligence,  or  should  it  become 
a  nuisance. 

The  law  will  not  encourage  the  purchase  of  a  right  for  the  purpose 
of  litigation.     {Occum  Co.  v.  Sprague  APfg  Co.,  34  Conn.  529.)] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      2^ 


BIRKMYR  V.   DARNELL. 

(S.  L.  C.  Vol.  I.  p.  490.) 
(Salkeld  27.) 

Decides :  That  a  promise  to  answer  for  the  debt,  de- 
fault, or  miscarriage  of  another  person,  for  which  that 
other  remains  Hable,  is  within  the  statute,  but  7iot  if 
that  other  does  not  remain  liable. 


PETER  V.    COMPTON. 

(S.  L.  C.  Vol.  I.  p.  577-) 
(Skinner  353.) 

This  was  an  action  upon  an  agreement  of  the  defend- 
ant, in  consideration  of  one  guinea  paid  him,  to  give 
the  plaintiff  so  many  on  the  day  of  his  marriage.  The 
marriage  did  not  happen  within  a  year,  and  the  ques- 
tion was,  whether  or  not  the  agreement  must  be  in 
writing.  Decided:  That  "an  agreement  which  is  not 
to  be  performed  within  one  year  from  the  making 
thereof"  means,  in  the  Statute  of  Frauds,  an  agree- 
ment which,  from  its  terms,  is  incapable  of  being  per- 
formed within  the  year;  and  therefore  the  agreement 
in  this  case  need  not  be  in  writing. 


28      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

Notes  on  these  two  Cases.  — T^t  following  is  the  4th  section  of  the 
Statute  of  Frauds  (29  Car.  2,  c,  3)  :  "  No  action  shall  be  brought  whereby 
to  charge  any  executor  or  administrator  upon  any  special  promise  to 
answer  damages  out  of  his  own  estate,  or  whereby  to  charge  the  defend- 
ant upon  any  special  promise  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another  person,  or  to  charge  any  person  upon  any  agreement 
made  upon  consideration  of  marriage,  or  upon  any  contract  or  sale  of 
lands,  tenements,  or  hereditaments,  or  any  interest  in  or  concerning  them, 
or  upon  any  agreement  which  is  not  to  be  performed  within  one  year 
from  the  making  thereof,  unless  the  agreement  upon  which  such  action 
shall  be  brought,  or  some  memorandum  or  note  thereof,  shall  be  in 
writing,  and  signed  by  the  party  to  be  charged  therewith,  or  some  other 
person  thereunto  by  him  lawfully  authorized." 

The  above  two  cases  are  therefore  on  two  of  the  agreements  men- 
tioned in  the  section,  viz.  guarantees  and  agreements  not  to  be  performed 
within  a  year.  The  case  of  Birkviyr  v.  Danicll  is  on  the  point  of  guar- 
antee, deciding  that  if  the  original  party  remains  liable,  then  the  agree- 
ment is  within  the  statute,  and  must  be  in  writing;  but  if  the  original 
party  does  not,  in  fact,  remain  liable,  then  it  is  entirely  a  fresh  agree- 
ment, and  not  within  the  statute ;  and  a  guarantee  is  therefore  properly 
defined  as  a  collateral  promise  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another  for  which  that  other  remains  primarily  liable.  19 
&  20  Vict.  c.  97,  s.  3,  provides  that  the  consideration  for  a  guarantee 
need  not  appear  on  the  face  of  the  written  instrument  {s,te  post,  p.  71); 
and  the  same  statute  (sect.  4)  provides  that  a  guarantee  to  or  for  a  firm 
shall  cease  upon  a  change  in  the  firm,  unless  the  intention  of  the  parties 
that  it  shall  continue  notwithstanding  such  change  shall  appear.  The  same 
statute  also  (sect.  5)  provides  that  a  surety  who  discharges  the  liability 
of  his  principal  is  to  be  entitled  to  an  assignment  of  all  securities  held  by 
creditor,  although  they  may  be  deemed  at  law  to  be  satisfied  by  his  payment. 

The  latter  case  of  Peter  v.  Coinpton  well  explains  what  is  meant  by 
an  agreement  not  to  be  performed  within  one  year  from  the  making 
thereof,  showing  that  where,  on  the  face  of  the  agreement,  it  is  capable 
of  being  performed  within  the  year,  then  it  is  not  within  the  statute,  and 
need  not  be  in  writing;  though  where,  from  its  very  terms,  it  is  incapable 
of  being  so  performed,  then  it  must  be  in  writing.  However,  with 
regard  to  this  case,  there  is  this  to  be  observed,  that  it  might  have  been 
decided  in  the  same  way  upon  another  ground,  viz.,  that  all  which  was 
to  be  done  by  one  of  the  parties  was  to  be  done  within  a  year.  {Donellan 
V.  Read,  3  B.  &  Aid.  899.) 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      29 

[The  party  to  whom  credit  has  been  given  is  the  one  liable  upon  an 
undertaking.  It  was  agreed  between  the  parties  to  an  executory  agree- 
ment, that,  if  the  one  would  release  the  other  from  his  engagement,  the 
latter  would  pay  the  outstanding  indebtedness  of  the  former,  which  had 
been  incurred  under  the  agreement  ;  and  it  was  held  to  be  within  the 
statutes  of  frauds.  {Curtis  v.  Brown,  5  Cush.  4S8.)  But  in  a  similar 
contract,  where  the  original  debtor  had  absconded,  and  the  contractor 
had  refused  to  finish  the  work,  but  was  induced  to  go  on  with  it  upon 
the  representation  of  a  third  person  that  the  latter  had  purchased  the 
interest  of  the  debtor  in  the  contract,  it  was  held  that  the  latter  agree- 
ment was  an  original  one.     {King  v.  Despard,  5  Wend.  277.) 

If  an  agreement  might  be  performed  within  a  year,  it  is  not  within 
the  statute  of  frauds.     {Ketit  v.  Kent,  18  Pick.  569.)] 


30     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


PRICE   V.   EARL   OF   TORRINGTON. 

(S.  L.  C.  Vol.  I.  p.  535.) 
(Salkeld  285.) 

This  was  an  action  for  beer  sold  and  delivered,  and 
the  evidence  given  to  charge  defendant  was,  that  the 
drayman,  in  the  usual  course  of  business,  and  in  dis- 
charge of  his  duty,  had  made  a  note  of  the  delivery  of 
the  beer,  and  set  his  hand  thereto,  and  that  he  had 
since  died.  Decided:  That  this  was  good  evidence  of 
a  delivery. 


HIGHAM   V.    RIDGWAY. 

(S.  L.  C.  Vol.  II.  p.  331.) 
(i  East  109.) 

In  this  case  it  was  necessary  to  prove  the  precise 
date  of  the  birth  of  one  William  Fowden,  and  to 
prove  this,  an  entry  made  by  a  man-midwife  (since 
dead),  who  had  delivered  the  mother,  of  his  havins: 
done  so  on  a  certain  day,  referring  to  his  ledger,  in 
which  he  had  made  a  charge  for  his  attendance,  which 
was  marked  as  paid,  was  tendered.  Decided:  That 
this  was  good  evidence. 

Notes  on  these  two  Cases.  — These  two  cases  are  here  placed  together 
because  they  are  both  on  the  subject  of  evidence,  and  because  they  are 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      3 1 

sometimes  confused  by  students.  The  grounds  of  the  decisions  are, 
however,  quite  distinct;  that  of  Price  v.  Earl  of  Torrington  being,  that 
the  entry  was  made  in  the  ordinary  course  of  business,  and  in  the  per- 
formance of  duty :  and  here  it  must  be  observed,  that  in  this  class  of 
cases  only  so  much  of  the  entry  as  it  was  strictly  the  duty  of  the  party 
to  make  can  be  received.  But  the  ground  of  the  decision  in  HigJiam  v. 
Ridgway  was,  that  the  entry  was  against  the  interest  of  the  party  who 
had  made  it,  and  in  this  class  of  cases  the  other  facts  stated  in  the 
entry,  though  not  against  the  interest  of  the  party  making  the  entry, 
can  be  received.  Had  this  not  been  so,  the  entry  given  in  evidence  in 
Higham  v.  Ridgway  would  have  been  inadmissible.  The  distinction  is 
most  important  and  should  be  well  observed. 

These  two  classes  of  cases  come  properly  under  the  heading  of 
Hearsay  Evidence,  which  may  be  defined  as  some  "  oral  or  written  state- 
ment of  a  person  who  is  not  produced  in  Court,  conveyed  to  the  Court 
either  by  a  witness  or  by  the  instrumentality  of  a  document."  (Powell's 
"  Evidence  "  137.)  The  general  rule  as  to  hearsay  evidence  is  that  it 
is  not  admissible.  The  foregoing  cases  show  two  exceptions  to  this 
rule,  and  in  addition  to  these,  other  cases  in  which  the  statements  of 
persons  not  upon  oath  are  admissible  in  evidence  are,  that  in  respect 
of  matters  of  public  and  general  interest,  declarations  of  deceased  per- 
sons who  may  be  presumed  to  have  had  competent  knowledge  on  the 
subject,  are  admitted  if  made  before  any  controversy  arose  ;  also  matters 
of  pedigree  may  be  proved  by  declarations  of  deceased  persons  connected 
by  blood  or  marriage  with  the  family,  if  made  before  any  controversy 
arose,  or  by  the  general  reputation  of  a  family.  (See  hereon  Indermaur's 
"  Principles  of  the  Common  Law,"  Am.  ed.  pp.  442-445.  Also  see  32  & 
33  Vict.  c.  6S,  s.  4,  post,  p.  34.) 

[In  an  action  between  two  towns  it  became  necessary  to  fix  the  true 
date  of  an  event.  The  books  of  a  deceased  physician,  containing  the 
charges  and  the  dates  thereof,  for  services  to  one,  the  cause  of  the  liti- 
gation, were  admitted  as  competent  evidence  to  prove  such  date,  the 
employment  and  services  of  the  physician  having  been  proved.  (Augusta 
V.  tViftdsor,  19  Maine  317.) 

The  doctrine  of  Price  v.  Torrington  is  limited  to  the  person  whose 
duty  it  is  to  make  the  entry.  It  should  not  be  extended  so  as  to  include 
an  entry  of  sales  made  by  one  for  another  who  cannot  write,  the  latter 
having  died.     (Greenl.  Ev.  Vol.  i,  s.  116,  note  i.)] 


32      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


CUMBER  V.   WANE. 

(S.  L.  C.  Vol.  I.  p.  595.) 
(i  Strange  436.) 

Decided:  That  giving  a  note  for  £,^  cannot  be  pleaded 
in  satisfaction  of  ^£^15. 

Notes.  —  This  means  that  a  smaller  sum  cannot  be  given  in  extin- 
guishment of  a  greater,  though  something  else  might  so  operate ;  thus 
a  horse  might  be  given  in  discharge  of  a  debt  of  ;^IS,  though  it  was 
not  worth  even  ;^s.  It  should  be  here  observed  that  in  this  case  it  does 
not  appear  that  the  note  was  a  negotiable  note,  and  it  has  since  been 
decided  that  a  negotiable  security  may  operate,  if  so  given  and  taken, 
in  satisfaction  of  a  debt  of  greater  amount  {Sibree  v.  Tripp,  1 5  M.  &  W. 
23),  the  point  being  that  where  any  thing  not  actually  money,  but  of  a 
different  value,  is  given,  the  Court  will  not  enter  into  the  question  of  its 
adequacy.  Again,  if  there  is  any  doubt  or  any  bond  fide  dispute  as  to 
the  amount  due,  a  smaller  sum  may  be  paid  in  satisfaction  of  a  larger 
amount  claimed.  A  smaller  sum  may  also  be  made  a  satisfaction  of  a 
greater,  if  a  receipt  is  given  under  seal ;  and  under  the  Bankruptcy 
Act,  1S69,  a  majority  of  the  creditors  of  any  person  assembled  as 
therein  mentioned  may  by  resolution  agree  to  accept  a  composition  in 
satisfaction  of  their  debts,  which  is  to  be  binding  on  the  other  creditors, 
and  the  payment  of  which  composition  is  to  discharge  the  debtor. 
(See  Indermaur's  "  Principles  of  the  Common  Law,"  Am.  ed.  pp.  228, 
229.) 

[An  agreement  to  take  part  payment  of  a  debt  in  full  accord  and 
satisfaction  of  the  same,  to  be  valid,  must  be  supported  by  some  consid- 
eration not  found  in  the  original  transaction. 

It  should  be  either  imported  by  the  use  of  a  seal,  or  it  should  be  such 
as  would  support  a  new,  or  any  valid  agreement. 

A  compromise  of  a  doubtful  claim,  or  acceptance  of  part  payment 
from  a  third  person  in  extinguishment  of  the  debt  made  in  behalf  of  the 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      33 

debtor,  or  the  acceptance  of  something  not  money,  or  receiving  a  part 
at  a  different  time  or  place  than  agreed  upon  by  the  parties,  would  be 
a  sufficient  and  binding  consideration  to  bar  an  action  brought  to  recover 
the  balance  of  the  original  claim  by  a  creditor  against  the  debtor.  (Sey- 
mour v.  Minturn,  17  Johns.  169;  Brooks  v.  White,  2  Mete.  283.)] 


34     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


ARMORY   V.   DELAMIRIE. 

(S.  L.  C.  Vol.  I.  p.  636.) 
(i   Strange  504.) 

The  plaintiff,  being  a  chimney-sweeper's  boy,  found 
a  jewel,  and  carried  it  to  the  shop  of  the  defendant, 
who  was  a  goldsmith,  to  know  what  it  was.  He  deliv- 
ered it  to  an  apprentice,  who  took  out  the  stone,  and 
the  master  offered  him  three-halfpence  for  it.  The 
plaintiff  refused  to  take  it,  and  insisted  on  having  it 
returned,  whereupon  the  apprentice  delivered  him  back 
the  socket  without  the  stone  ;  and  so  the  plaintiff  now 
brought  an  action  of  trover  against  the  master.  De- 
cided: (i)  The  finder  of  a  jewel  may  maintain  trover 
for  conversion  thereof  against  the  wrongdoer,  for  he 
has  a  good  title  against  all  but  the  right  owner.  (2) 
A  master  is  liable  for  a  loss  of  his  customer's  property 
intrusted  to  his  servant  in  the  course  of  his  business. 
(3)  When  a  person,  who  has  wrongfully  converted 
property,  will  not  produce  it,  it  shall  be  presumed  as 
against  him  to  be  of  the  best  description. 

^'^/^j-.  _  The  chief  and  important  decision  in  the  above  case  is  that 
numbered  (i),  showing  that  a  finder  of  property  has  a  good  title  against 
all  except  the  rightful  owner.  The  evidence  to  be  adduced  on  the  trial 
of  an  action  for  damages  for  the  wrongful  conversion  of  goods  — for- 
merly called  an  action  of  trover  —  is  (a)  that  the  plaintiff  was  in  posses- 
sion of  the  goods,  or  had  a  right  of  property  with  the  right  to  immediate 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      35 

possession,  {l>)  that  the  goods  came  to  defendant's  possession,  (c)  that  he 
or  his  agent  converted  them,  and  (c/)  their  value. 

The  student  desiring  to  further  consider  the  subject  of  wrongful  con- 
version of  goods  is  referred  to  the  following  cases  on  that  subject: 
HoUins  V.  Fowler,  L.  R.  7  H.  L.  757  ;  20  W.  R.  208.  Cochrane  v.  Ky- 
mill,  27  W.  R.  176;  National  Mercantile  Bank  v.  Havipson,  L.  R.  5  Q.  15. 
D.  177;  28  W.  R.  424;   Taylor  v.  McKeand,  28  W.  R.  628. 

[The  right  of  one  having  possession  of  property  and  a  right  in  it 
is  well  illustrated  by  the  case  of  Shaw  v.  Caler,  106  Mass.  448.  Tlic 
defendant,  as  agent,  contracted  with  the  plaintiff  to  make  and  finish 
piano-cases,  and  to  furnish  him  shop-room  for  that  purpose.  The  plain- 
tiff had  a  lien  upon  the  pianos,  and  retained  possession  of  them  until  fin- 
ished. The  defendant,  as  mortgagee,  took  them  from  the  plaintiff  against 
his  consent,  and  without  showing  evidence  of  title  to  the  property,  except 
mere  assertion.  In  an  action  for  conversion  the  plaintiff  was  entitled  to 
recover  the  amount  of  his  damage.  The  rule  of  the  principal  case  is 
limited  to  lost  and  abandoned  property. 

Where  an  article  is  voluntarily  or  accidentally  left  by  the  owner  upon 
the  table  or  counter  of  a  shop,  the  finder  of  it  acquires  no  property  in 
it  as  against  the  shop-keeper.     (McAvoy  v.  Medina,  il  Allen  548.) 

If  the  finder  of  a  chose  in  action  (e.g.,  a  lottery  certificate)  notifies 
the  vendor  of  it  that  it  had  been  found  by  him,  in  an  action  by  him  against 
the  vendor  for  money  drawn  by  it,  it  was  held  that  the  action  could  not 
be  sustained,  because  the  defendants  would  be  liable  to  the  rightful 
owner,  having  knowledge  that  the  ticket  had  been  found.  [McLaughlin  v. 
Waite,  5  Wend.  405  )] 


^6     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


COLLINS   V.   BLANTERN. 

(S.  L.  C.  Vol.  I.  p.  667.) 
(2  Wilson  34L) 

In  this  case  the  plaintiff  sued  on  a  bond  executed  by 
certain  parties,  of  whom  the  defendant  was  one,  the 
obligation  of  which  was  ^^700  conditioned  for  payment 
of  ;!^350.  The  defendant  pleaded  the  following  facts, 
which  showed  that  the  consideration  though  not  ap- 
pearing on  the  face  of  the  bond  was  illegal :  Certain 
parties  were  prosecuted  for  perjury  by  one  John  Rudge, 
and  pleaded  not  guilty.  According  to  an  arrangement 
the  plaintiff  gave  his  promissory  note  to  the  prose- 
cutor, John  Rudge,  he  to  forbear  further  prosecuting, 
and  as  part  of  the  arrangement  the  bond  on  which 
plaintiff  sued  was  executed  to  indemnify  him.  The 
question  was  whether  such  a  plea  was  good.  Decided: 
That  the  plea  was  good,  for  illegality  may  be  pleaded 
as  a  defence  to  an  action  on  a  bond. 


Notes.  —  It  will  be  observed  that  the  instrument  was  one  under  seal, 
and  that  the  case  decides  that  though  so  under  seal,  and  notwithstand- 
ing the  rule  that  a  contract  under  seal  is  binding  on  the  party  making  it, 
whether  there  is  a  consideration  or  not,  the  defendant  was  not  estopped 
from  setting  up  the  illegality. 

(As  to  estoppel,  s&&  post,  p.  94.) 

["  To  render  a  promise  illegal  so  as  to  vitiate  a  contract,  it  must 
appear  to  have   been  made  for  the  sake  of  gain,  and  not  merely  from 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      37 

motives  of  kindness  and  compassion."  (IVard  v.  Alien,  2  Mete.  53.) 
Parties  may  agree  to  settle  the  private  rights  of  one  of  them  who  has 
been  injured;  but  if  the  injury  is  the  consequence  of  a  public  offence,  he 
cannot,  upon  any  consideration,  make  a  valid  agreement  to  dispose  of 
the  rights  of  the  public  to  prosecute  the  offender.] 


38      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


MITCHELL   V.    REYNOLDS. 

(S.  L.  C.  Vol.  I.  p.  705.) 
(I  P.  Wms.  181.) 

Here  the  defendant  had  assigned  to  the  plaintiff  a 
bake-house,  and  had  executed  a  bond  not  to  carry  on 
the  trade  of  a  baker  within  the  parish  for  a  period  of 
five  years,  under  a  penalty  of  ^50.  This  action  was 
now  brought  on  the  bond,  and  the  defendant  pleaded 
that  it  was  void  at  law.  Decided :  That  the  bond  was 
good,  as  it  only  restrained  the  defendant  from  trading 
in  a  particular  place,  and  was  on  a  reasonable  consider- 
ation, but  that  it  would  have  been  otherwise  if  on  no 
reasonable  consideration,  or  to  restrain  a  man  from 
tradins:  at  all. 


MALLAM    V.    MAY. 

(II   M.  &  W.  653.) 

By  articles  it  was  agreed  that  defendant  should  be- 
come assistant  to  the  plaintiffs  in  their  business  of 
surgeon-dentists  for  four  years  ;  that  plaintiffs  should 
instruct  him  in  the  business  of  a  surgeon-dentist,  and 
that  after  the  expiration  of  the  term  the  defendant 
should  not  carry  on  that  business  in  London  or  in  any 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      39 

of  the  towns  or  places  in  England  or  Scotland  where 
the  plaintiffs  might  have  been  practising  before  the  ex- 
piration of  the  said  service.  Decided:  That  the  stipu- 
lation not  to  practise  in  London  was  valid,  the  limit  of 
London  not  being  too  large  for  the  profession  in  ques- 
tion, and  that  the  stipulation  as  to  not  practising  in 
towns  where  the  plaintiffs  might  have  been  practising 
during  the  service  was  an  unreasonable  restriction,  and 
therefore  illegal  and  void  ;  but  that  the  stipulation  as 
to  not  practising  in  London  was  not  affected  by  the 
illegality  of  the  other  part. 

Notes  oil  these  huo  Cases.  —  All  contracts  in  general  restraint  of  trade 
are,  notwithstanding  any  consideration  that  may  exist,  perfectly  void, 
because  they  tend  to  discourage  industry,  enterprise,  and  competition  ; 
and  even  with  regard  to  contracts  in  limited  restraint  of  trade,  it  is 
important  to  remember  that  to  render  them  good  they  must  always  be 
founded  on  a  reasonable  consideration,  and  this  notwithstanding  that 
the  contract  may  be  under  seal,  in  which  we  find  an  exception  to  the 
rule  that  contracts  under  seal  require  no  consideration.  The  latter  of 
the  above  two  cases  plainly  shows  that  agreements  in  restraint  of  trade 
are  divisible,  i.e.,  part  may  be  void  while  part  remains  good. 

[The  term  "  trade  "  is  construed  to  mean  all  professions  and  kinds  of 
business. 

A  contract  not  to  disclose  the  secret  or  art  of  some  trade,  or  to  work 
for  another  exclusively,  is  not  in  restraint  of  trade. 

A  bond  conditioned  that  the  obligor  shall  never  carry  on,  or  be  con- 
cerned in,  the  business  of  founding  iron,  is  void.  {Aiger  v.  Thacher, 
19  Pick.  51.) 

The  plaintiff  covenanted  with  the  defendant  that  he  would  not,  for  a 
limited  time,  be  connected  with  the  manufacture  of  certain  articles  in 
the  county  of  Hamilton  or  in  the  United  States.  It  was  decided  on 
demurrer  to  the  declaration,  that  the  covenant  not  to  pursue  the  business 
m  said  county  was  valid,  but  not  to  pursue  it  in  the  United  States  was 
void;  and  that  the  declaration  should  allege  a  partial  restraint  of  trade 
a  valuable  consideration,  and  that  the  restraint  is  reasonable  and  not 
oppressive.     {Lange  v.  Werk,  2  Ohio  St.  519.)] 


40     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


SIMPSON   V.    HARTOPP. 

(S.  L.  C.  Vol.  I.  p.  727.) 
(4  T.  R.  568;   WiLLES  514.) 

Decided:  Implements  of  trade  are  privileged  from 
distress  for  rent,  if  they  be  in  actual  use  at  the  time,  or 
if  there  be  any  other  sufficient  distress  on  the  premises. 

Notes.  —  Distress,  which  is  a  remedy  by  the  act  of  the  party,  has 
been  defined  as  the  taking  of  a  personal  chattel  out  of  the  possession 
of  the  wrongdoer  into  the  custody  of  the  injured  person,  in  order  to 
procure  a  satisfaction  of  the  wrong  done  (3  Stephen's  Comms.,  8th 
ed.  p.  247).  It  may  be  useful  here  to  give  a  statement  of  things  privi- 
leged ((?)  from  distress,  and  (/')  from  execution. 

(a)  The  following  are  privileged  from  distress:  — 

1.  Things  in  the  personal  use  of  a  man. 

2.  Fixtures  affixed  to  the  freehold. 

3.  Goods  of  a  stranger  delivered  to  tenant  to  be  wrought  on 

in  the  way  of  his  ordmary  trade. 
/|.  Perishable  articles. 

5.  Animals  fercE  natiirfE. 

6.  Goods  in  custodia  legis. 

7.  Instruments  of   a  man's  trade  or  profession,  though  not  in 

actual  use,  if  any  other  sufficient  distress  can  be  found. 

8.  Beasts  of  the  plough,  instruments  of  husbandry,  and  beasts 

which   improve   the    land,  if   any  other  sufficient  distress 
can  be  found. 

9.  Loose  money. 

10.  Ivodgers'  goods,  by  force  of  the  statute  34  &  35  Vict.  c.  79. 
{b)  The  following  are  privileged  from  being  taken  in  execution :  — 

1.  "Wearing  apparel  and  bedding,  and  implements  of  trade  of 

any  judgment-debtor  not  exceeding  £^. 

2.  Goods  of  a  stranger. 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      4 1 

3.  Goods  in  cnstodia  legis. 

4.  Fixtures  affixed  to  the  freehold. 

5.  (In  the  case  of  an  elegit.)     Advowsons  in  gross,  and  glebe 

lands. 

(As  to  the  effect  of  any  irregularity  in  making  a  distress,  see  ante, 
p.  14;  and  generally  as  to  distress,  see  Indermaur's  "Principles  of  the 
Common  Law,"  Am.  ed.  pp.  70-75.) 

[The  statutes  of  the  several  States  exempting  property  from  attach- 
ment on  mesne  process,  or  from  being  seized  to  satisfy  execution,  should 
be  consulted.] 


42      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


OMICHUND   V.    BARKER. 

(S.  L.  C.  Vol.  I.  p.  739.) 

(WiLLES    550.) 

The  question  in  this  case  was  whether  the  evidence 
of  witnesses  of  the  Gentoo  religion,  and  sworn  accord- 
ing to  that  religion,  was  admissible.  Decided:  That 
the  evidence  was  admissible,  and  that  whenever  a  wit- 
ness believes  in  the  existence  of  a  God  who  will  pun- 
ish him  in  this  world,  his  evidence  must  be  admitted. 

Notes.  —  In  later  cases  it  has  been  decided  that  to  render  the  evi- 
dence admissible,  the  belief  of  the  witness  must  be  in  the  existence  ot  a 
God  who  will  punish  in  a  future  world.  However,  now  by  32  &  33  Vict, 
c.  68,  s.  4,  it  is  provided  that  on  objection  to  take  an  oath  in  any  civil  or 
criminal  proceeding,  such  person  shall,  if  the  presiding  judge'  is  satis- 
fied that  the  taking  of  an  oath  would  have  no  binding  effect  on  him, 
make  the  following  promise  and  declaration-  "I  solemnly  promise  and 
declare  that  the  evidence  given  by  me  to  the  Court  shall  be  the  truth, 
the  whole  truth,  and  nothing  but  the  truth  ; "  and  the  person  making 
such  promise  and  declaration  is  to  be  liable  for  perjury  in  the  same  way 
as  if  he  had  taken  an  oath. 

It  may  be  useful  here  to  give  a  short  statement  of  the  law  as  to  the 
admissibility  of  witnesses,  which  now  stands  as  follows  :  — 

6  &^  y  Vict  c.  8j.  —  No  person  offered  as  a  witness  shall  be  hereafter 
excluded  by  reason  of  incapacity  from  crime  or  interest  from  giving 
evidence. 

14  &•  IS  Vict.  c.  gg.  —  Parties  to  actions  and  suits,  and  the  persons 
on  whose  behalf   same    are   brought   and   defended,  shall  (with   certain 

'  By  33  &  34  Vict.  c.  49,  this  is  to  extend  to  any  person  or  persons  having  by 
law  authority  to  administer  an  oath. 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      43 

exceptions)  be  competent  and  compellable  to  give  evidence ;  but  this  is 
not  to  render  a  party  charged  with  a  criminal  offence  able  to  give 
evidence  for  or  against  himself. 

lb  &=  17  Vict.  c.  8j.  —  Husbands  and  wives  are  to  be  competent  and 
compellable  witnesses,  except  in  criminal  cases;  but  husband  or  wife 
not  compelled  to  disclose  any  communication  made  during  marriage. 

j2  6^  33  Vict.  c.  63.  —  Parties  in  breach  of  promise  cases  and  adul- 
tery proceedings  are  competent  witnesses;  but  in  adultery  proceedings 
parties  are  not  bound  to  confess  the  adultery  unless  they  have  given  evi- 
dence in  disproof  of  adultery,  and,  in  breach  of  promise  cases,  the 
evidence  of  the  plaintiff  must  be  corroborated  by  some  material  evidence 
in  support  of  the  promise. 

//  &'  18  Vict.  c.  12^,  ss.  22-27,  ^^so  contains  important  provisions  as 
to  evidence. 

[It  is  now  generally  settled  in  this  country,  that  if  a  witness  has  a 
religious  sense  of  accountability  to  an  Omniscient  Being  who  is  invoked 
by  oath,  it  is  not  material  whether  the  witness  believes  punishment  will  be 
inflicted  in  this  world,  or  in  the  ne.xt.  (Greenl.  Ev.  vol.  i,  s.  369.)  See 
the  statutes  of  the  various  States.] 


44     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


MILLER   V.    RACE. 

(S.  L.  C.  Vol.  I.  p.  808.) 
(i  Burr  452.) 

Decided:  That  the  property  in  a  bank  note  passes 
like  cash  by  delivery,  and  a  party  taking  it  bond  fide, 
and  for  value,  is  entitled  to  retain  it  as  against  a  for- 
mer owner  from  whom  it  was  stolen. 

Notes.  —  This  case  establishes  the  above  principle  in  favor  of  all 
negotiable  instruments,  that  is,  instruments  the  property  in  which  passes 
by  delivery  so  as  to  give  the  transferee  a  right  to  sue  on  them  in  his 
own  name.  But  if  the  party  taking  the  negotiable  instrument  has  been 
guilty  of  mala  fides,  he  will  not  be  entitled  to  retain  it  against  the  true 
owner,  and  gross  negligence  in  taking  the  negotiable  instrument  seems 
to  constitute  sufficient  mala  fides. 

As  to  other  things,  a  purchaser,  if  they  are  stolen,  acquires  no  title 
unless  he  bought  in  market  overt  and  bouA  fide,  and  even  then,  if  the 
offender  is  prosecuted  to  conviction  no  title  is  acquired,  as  they  revert 
on  conviction  to  the  owner.  If  goods  are  sold  by  a  person  who  found 
them,  they  may  be  recovered  by  the  owner  from  the  person  who  bought 
them. 

There  being  this  difference  between  things  negotiable  and  not  nego- 
tiable, it  may  be  well  to  quote  the  following  passage  from  "  Smith's  Lead- 
ing Cases :  "  "  It  maybe  laid  down  as  i  safe  rule  that  where  an  instrument 
is  by  the  custom  of  trade  transferable  like  cash  by  delivery,  and  is  also 
capable  of  being  sued  upon  by  the  person  holding  it  pro  tempore,  there 
it  is  entitled  to  the  name  of  a  negotiable  instrument,  and  the  property 
in  it  passes  to  a  bond  fide  transferee  for  value  though  the  transfer  may 
not  have  taken  place  in  market  overt.  But  that  if  either  of  the  above 
requisites  be  wanting,  i.e.,  if  it  be  either  not  accustomably  transferable, 
or  though  it  be  accustomably  transferable,  yet,  if  its  nature  be  such  as 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      45 

to  render  it  incapable  of  being  put  in  suit  by  the  party  holding  it  pro 
tempore,  it  is  not  a  negotiable  instrument,  nor  will  delivery  of  it  pass, 
otherwise  than  by  estoppel,  the  property  of  it  to  a  vendee,  however  bond 
fide,  if  the  transferor  himself  have  not  a  good  title  to  it,  and  the  transfer 
be  made  out  of  market  overt."     (7th  Am.  ed.  815.) 

[By  the  leading  authority  in  this  country,  it  was  decided  that  nothing 
short  of  bad  faith  would  overcome  the  title  of  a  holder  of  a  negotiable 
instrument,  and  that  the  burden  of  proof  is  on  him  who  assails  the  title. 
And  gross  negligence  is  not  evidence  of  mala  fides.  {Goodman  v. 
Simonds,  20  How.  (U.S.)  343.) 

The  want  of  consideration  alone  is  not  sufficient  to  cast  the  burden 
of  proof  upon  the  plaintiff. 

In  cases  where  the  title  to  negotiable  instruments  is  not  in  question, 
but  the  defence  of  fraud  or  forgery  is  set  up,  a  recent  case  upon  review 
of  the  law  upon  the  point  decides,  that  when  the  maker  of  a  promissory 
note  is  not  guilty  of  negligence  in  signing  it,  and  putting  the  same  in 
circulation,  he  is  entitled  to  the  same  defence  as  he  would  have  against 
the  original  holder,  although  the  holder  of  the  note  paid  a  valuable  con- 
sideration for  it,  but  does  not  show  that  he  bought  it  in  the  usual  course 
of  business,  and  paid  full  value  for  it.  {Millard  v.  Barton,  13  R.I. — 
26  Alb.  L.  J.  191.)  The  doctrine  of  market  overt  does  not  obtain  in 
this  country.] 


46      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


MISA  V.   CURRIE. 

(L.  R.  I  App.  Cases  554.) 
(45  L.  J.  Ex.  852.) 

In  this  case  the  defendant  drew  a  check  for  ;^  1,999 
3i-.  in  favor  of  one  Lizardi  or  bearer,  and  he  paid  it  to 
the  plaintiffs,  his  bankers,  in  consideration  and  on  ac- 
count of  an  amount  owing  to  them  exceeding  that  sum 
on  his  overdrawn  account.  Before  presentment  of  the 
check  Lizardi  stopped  payment,  whereby  the  consid- 
eration for  the  defendant  giving  the  check  failed,  and 
he  accordingly  instructed  his  bankers  not  to  honor  it. 
This  was  an  action  brought  to  recover  tlie  amount  of 
the  check.  Decided  (Lord  Coleridge,  C.J.,  dissentient)  : 
That  the  plaintiffs  were  entitled  to  recover. 

Notes.  —  This  case  is  placed  here  to  follow  that  of  Miller  v.  Race,  as 
relating  to  negotiable  securities,  and  it  is  a  decision  of  very  consider- 
able importance,  though  it  must  be  considered  somewhat  weaker  than 
it  would  have  been  had  the  Lord  Chief  Justice  concurred  in  the 
judgment. 

In  the  circumstances  of  this  case,  which  are  very  briefly  stated  above, 
had  the  check  remained  in  the  hands  of  Lizardi,  the  original  drawee, 
the  consideration  failing,  of  course  no  action  could  have  been  main- 
tained on  it.  And,  again,  had  he  parted  with  it  for  value  then  paid 
bond  fide  without  the  party  taking  it  having  any  notice  of  his  infirmity 
of  title,  there  could  have  been  no  doubt  but  that  the  party  so  taking  it 
must  have  had  a  perfect  title  to  it  and  right  to  the  money.  But  here 
the  great  difference  and  point  in  the  case  was,  that  it  was  paid  over  on 
account  of   a  pre-existing  debt,  and  on  this  ground  of  no  value  being 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      4J 

then  paid,  the  Lord  Chief  Justice  considered  that  the  defendant  ought 
to  have  judgment.  The  majority  of  the  Court,  however,  clearly  decided 
that  this  made  no  difference,  and  that  the  plaintiff  was  entitled  to  re- 
cover, the  ground  and  reasoning  for  the  decision  being  that  a  creditor  to 
whom  a  negotiable  security  is  given  on  account  of  a  pre-existing  debt, 
holds  it  by  an  indefeasible  title. 

As  relating  to  the  subject  of  checks,  it  may  be  useful  to  here  remind 
the  student  of  the  Crossed  Checks  Act,  1876  (39  &  40  Vict.  c.  81). 
Under  this  Act,  if  a  check  is  crossed  generally,  it  must  be  paid  through 
some  bank,  and  if  crossed  specially,  through  the  particular  bank  named ; 
and  if  a  banker  pays  a  check  so  crossed  otherwise  than  in  these  ways, 
he  is  rendered  liable  to  the  true  owner  for  any  loss  he  may  sustain 
owing  to  the  check  having  been  so  paid.  In  addition  to  this,  a  check 
if  crossed  either  generally  or  specially,  may  also  be  crossed  with  the 
words  "  not  negotiable ; "  and  if  a  person  takes  a  check  bearing  these 
words,  he  is  not  to  be  capable  of  giving^  a  better  title  to  it  than  that 
which  the  person  from  whom  he  took  it  had. 

[A  pre-existing  debt  is  a  sufficient  consideration  for  a  promissory 
note,  by  the  weight  of  authority  in  America,  and  whether  or  not  it  be 
taken  in  payment  of,  or  as  collateral  security  for,  such  debt.  {Swift  v. 
Tyson,  16  Pet.  i.     See,  contra,  Bay  v.  Coddington,  5  Johns.  Ch.  54.) 

But  whether  or  not  a  negotiable  promissory  note  is  taken  in  extin- 
guishment of  such  a  debt  depends  upon  the  intention  of  the  parties.  It 
vs,  prima  facie  so  taken. 

Where  one  purchases  a  bill  or  note,  as  a  chattel,  from  one  who 
passes  the  title  to  it  by  delivery,  the  purchaser  can  claim  no  warranty  of 
the  solvency  of  the  maker  from  the  seller.  (.Day  v.  Kinney,  131  Mass. 
37-)] 


48      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


WIGGLESWORTH   v.    DALLISON. 

(S.  L.  C.  Vol.  I.  p.  900.) 

(DOUGL.   204.) 

Decided:  That  a  custom  that  the  tenant  of  land, 
whether  by  parol  or  deed,  shall  have  the  away-going 
crop,  after  the  expiration  of  his  term,  is  good,  if  not 
repugnant  to  the  lease  under  which  the  tenant  holds. 

Notes.  —  But  if  the  lease  contains  certain  stipulations  as  to  the  mode 
of  quitting,  then,  of  course,  that  puts  out  the  custom,  and  the  terms  in 
the  lease  prevail,  which  is  in  accordance  with  the  maxim,  '''■  Expressum 
facit  cessare  taciturn.^''  It  may  be  stated  as  a  general  rule  that  whenever 
there  is  any  certain  well-known  and  established  usage  or  custom,  and 
parties  contract  on  a  matter  connected  with  it,  they  will  be  presumed  to 
have  intended  to  make  such  usage  or  custom  a  part  of  their  contract, 
and  it  will  be  deemed  to  be  incorporated  therewith  unless  there  is  any 
thing  in  the  express  contract  to  exclude  its  application. 

[Where  one  in  possession  of  premises  from  year  to  year,  whose  term 
expired  on  the  first  day  of  April,  and  who  had  sowed  a  crop  during  the 
previous  autumn,  evidence  of  a  custom  for  a  tenant  from  year  to  year  to 
have  the  away-going  crop  when  his  term  expires  on  the  first  day  of  April, 
was  proof  of  the  right  to  the  crop,  no  express  agreement  to  the  contrary. 
{^Foster  v.  Robinson,  6  Ohio  St.  95.) 

The  lessee  of  a  mortgagor  is  not  entitled  to  have  a  crop  on  the 
mortgaged  premises  at  the  time  of  foreclosure,  as  against  the  mortgagee. 
^Lane  v.  King,  8  Wend,  584.)] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      49 


KEECH    V.    HALL. 

(S.  L.  C.  Vol.  I.  p.  879.) 
(DouGL.  21.) 

Decided:  That  a  mortgagee  may  recover  in  eject- 
ment without  giving  notiee  to  quit,  against  a  tenant 
claiming  under  a  lease  from  the  mortgagor  made  after 
the  mortgage  without  the  privity  of  the  mortgagee. 


MOSS   V.    GALLIMORE. 

(S.  L.  C.  Vol.  I.  p.  926.) 
(DouGL.  279.) 

Decided:  That  a  mortgagee,  after  giving  notice  of 
the  mortgage  to  a  tenant  in  possession  under  a  lease 
prior  to  the  mortgage,  is  entitled  to  the  rent  in  arrear 
at  the  time  of  the  notice,  as  well  as  to  what  accrues 
after,  and  he  may  distrain  for  it  after  such  notice. 

Notes  on  these  two  Cases.  —  It  is  well  to  observe  carefully  the  different 
results  arising  from  these  two  cases.  The  mortgagor  having  mortgaged 
his  property  cannot  himself  (subject  to  the  provisions  of  the  Conveyan- 
cing and  Law  of  Property  Act,  iSSi,  44  &  45  Vict.  c.  41)  grant  any  valid 
lease,  and  any  such  lease  is  in  fact  a  nullity,  and  being  so  the  mortgagee 
can  of  course  avoid  it  altogether ;  but  if  the  mortgagor  before  the  mort- 
gage made  a  lease,  that  is  perfectly  good,  and  the  mortgagee  cannot 
avoid  it,  but  to  obtain  the  full  benefit  of  his  security  he  can  give  notice 


50     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

to  the  tenant,  and  obtain  not  only  accruing  rents,  but  also  rent  in  arrear, 
towards  liquidation  of  the  amount  due  on  his  security. 

The  different  remedies  which  a  mortgagee  has,  after  default,  to  obtain 
payment  of  his  mortgage  money  are  as  follows  :  (a)  Ejectment  against 
mortgagor  and  his  tenants  since  the  mortgage,  as  decided  in  Keech  v. 
Hall,  {b)  Suing  on  bond  or  covenant,  (r)  Obtaining  rents  from  ten- 
ants prior  to  the  mortgage  by  giving  notice,  as  decided  in  Moss  v.  Galli- 
more.  {d)  Selling  under  the  power  of  sale  in  mortgage  deed,  or  under 
the  power  formerly  given  by  23  &  24  Vict.  c.  145,  but  now  by  44  &  45 
Vict.  c.  41.  [e]  When  in  possession  cutting  timber  if  security  insuffi- 
cient. (/")  Foreclosing.  If  a  mortgagee  forecloses  and  then  sues,  the 
effect  of  suing  is  to  open  the  foreclosure  and  give  the  mortgagor  a 
renewed  right  to  redeem ;  and  therefore,  if  a  mortgagee  forecloses  and 
then  sells,  he  cannot  afterwards  sue,  because  he  no  longer  has  the  mort- 
gaged estate  ready  to  be  redeemed  if  the  mortgagor  should  choose  to 
redeem  {Lockhart  v.  Hardy,  9  Beav.  349).  But  although  this  is  so,  yet 
it  is  decided  that  a  mortgagee,  after  selling  under  his  fozner  of  sale,  may 
sue  on  the  covenant  to  pay  (Ritdge  v.  Rickens,  28  L.  T.  537). 

A  mortgagee  may  exercise  his  different  remedies  as  he  pleases,  even 
concurrently.  A  mortgagee  will  not  be  entitled  to  add  to  his  mortgage 
debt  sums  expended  at  his  own  motion  for  general  improvement,  but  he 
will  be  allowed  to  add  sums  expended  for  necessary  repairs,  protecting 
the  title,  or  renewing  renewable  leaseholds.  But  neither  a  mortgagee 
nor  mortgagor  is  actually  bound  to  renew  a  renewable  leasehold  in  the 
absence  of  contract  so  to  do. 

[A  lessee  of  premises  can  only  take  a  title  commensurate  with  that  of 
his  landlord.  And  when  the  premises  are  under  mortgage  at  the  time 
of  their  demise,  the  lessee  takes  no  title,  and  his  entry  into  the  premises 
is  a  trespass  unless  the  mortgagor  is  permitted  to  remain  in  possession; 
but  as  rent  goes  with  the  reversion,  and  a  demise  of  the  property  prior 
to  the  mortgage  conveys  a  good  title,  the  mortgagee  takes  the  rent  after 
notice  of  the  mortgage,  while  the  tenant  is  in  of  right.  See  4  Kent,  12th 
ed.  pp.  157,  158. 

Actual  possession  lawfully  taken  by  the  mortgagee  who  threatens  to 
expel  a  lessee  holding  the  premises  by  lease  made  subsequent  to  the 
mortgage,  unless  he  pay  rent,  is  equivalent  to  an  actual  and  complete 
eviction.     (Smith  v.  Shepard,  15  Pick.  147.)] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      5 1 


MOSTYN   V.   FABRIGAS. 

(S.  L.  C.  Vol.  I.  p.  1024.) 
(Cowp.  i6l) 

This  was  an  action  against  the  Governor  of  Minorca 
for  trespass  and  false  imprisonment  in  Minorca,  and 
after  verdict  for  the  plaintiff,  the  principal  question  on 
a  bill  of  exceptions  was  whether  any  action  could  be 
maintained  by  a  native  of  Minorca  for  an  injury  com- 
mitted there.  Decided:  That  the  action  would  lie, 
being  of  a  transitory  nature,  but  that  if  it  had  been 
strictly  local  no  action  could  have  been  maintained  in 
England. 

l^otes.  —  Local  actions  are  those  founded  on  some  cause  of  action 
which  necessarily  refers  to  some  particular  locality ;  transitory  actions 
are  those  founded  on  a  cause  of  action  which  might  take  place  anywhere. 

By  the  Rules  in  the  Schedule  to  the  Judicature  Act,  1875  (38  &  39 
Vict.  c.  77),  the  whole  law  of  venue  is  abolished,  Order  36,  r.  1.  providing 
as  follows  :  — 

"There  shall  be  no  local  venue  for  the  trial  of  any  action,  but  when 
the  plaintiff  proposes  to  have  the  action  tried  elsewhere  than  in  Middle- 
sex, he  shall  in  his  statement  of  claim  name  the  county  or  place  in 
which  he  proposes  that  the  action  shall  be  tried,  and  the  action  shall, 
unless  the  judge  otherwise  orders,  be  tried  in  the  county  or  place  so 
named.  Where  no  place  of  trial  is  named  in  the  statement  of  claim, 
the  place  of  trial  shall,  unless  the  judge  otherwise  orders,  be  the  county 
of  Middlesex." 

The  defendant,  however,  is  not  at  all  absolutely  bound  by  the  place 
of  trial  as  chosen  by  the  plaintiff ;   he  may  apply  to  change  the  place 


52      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

of  trial,  and  if  he  can  show  that  some  other  place  would  be  more  con- 
venient or  a  saving  of  expense  to  the  parties  or  witnesses,  or  that  he 
cannot  obtain  a  fair  trial  at  the  place  chosen  by  the  plaintiff,  his  appli- 
cation will  be  entertained  and  the  place  of  trial  changed.  (See  hereon 
Indermaur's  "  Manual  of  Practice,"  2d  ed.  78.) 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      53 


LICKBARROW   v.    MASON. 

(S.  L.  C.  Vol.  I.  p.  1147.) 
(2  T.  R.  63.) 

Decided :  That  the  consignor  of  goods  may  stop  the 
goods  in  transitu  before  they  get  into  the  hands  of  the 
consignee  on  the  bankruptcy  or  insolvency  of  the  con- 
signee ;  but  if  the  consignee  has  assigned  the  bill  of 
lading  to  a  third  person  for  a  valuable  consideration  bond 
fide  without  notice,  the  right  of  the  consignor  is  gone. 


Notes.  —  "  Stoppage  in  trattsitu"  which  is  a  prevention  of  wrong  by 
a  mere  personal  act,  is  the  right  which  a  vendor  having  sold  goods  on 
credit  has  to  stop  them  on  their  way  to  the  vendee,  before  they  have 
reached  him,  on  his  becoming  bankrupt  or  insolvent.  If  the  goods  have 
actually  reached  the  vendee,  or  an  agent  on  the  part  of  the  vendee,  then 
the  right  is  gone,  as  the  very  name  "  stoppage  in  transitu  "  imports.  The 
rule  to  be  collected  from  the  cases  is  stated  to  be  that  the  goods  are 
"  in  transitu "  so  long  as  they  are  in  the  hands  of  the  carrier  as  such, 
whether  he  was  or  was  not  appointed  by  the  consignee,  and  also  so  long 
as  they  remain  in  any  place  of  deposit  connected  with  their  transmission. 
But  that  if  after  their  arrival  at  the  place  of  destination  they  be  ware- 
housed with  the  carrier,  whose  store  the  vendee  uses  as  his  own,  or  even 
if  they  be  warehoused  with  the  vendor  himself,  and  rent  be  paid  for 
them,  that  puts  an  end  to  the  right  to  stop  "in  transitu."  It  is  not 
necessary  in  exercising  the  right  of  stoppage  in  transitu,  that  the  vendor 
should  actually  seize  the  goods,  for  notice  to  the  carrier  or  other  for- 
warding agent  is  enough. 

As  to  the  latter  part  of  the  decision  in  the  above  case  see  also  now 
40  &  41  Vict.  c.  39,  s.  5. 

[Insolvency  may  be  proved  by  circumstances. 


54     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES, 

Stoppage  iti  transitu  is  effected  by  mere  notice  to  a  carrier  of  the 
goods  to  which  the  vendor's  lien  is  to  attach.  A  general  or  special  agent 
may  exercise  the  right  of  stoppage  in  transitu,  though  he  be  not  author- 
ized to  do  a  particular  act.  But  a  common  carrier,  when  a  question 
arises,  is  entitled  to  a  reasonable  time  to  ascertain  the  facts  of  the  case, 
have  the  agent  produce  his  authority  and  give  the  carrier  security  against 
loss  by  indemnity.  {Reynolds  v.  B.  &>  M.  R.R.  Co.,  43  N.H.  580.)  A 
common  carrier's  receipt,  not  negotiable,  delivered  by  the  owner  to  one 
as  security  for  advances  of  money  on  the  goods  shipped,  with  the  inten- 
tion to  transfer  the  property  in  them  to  the  latter,  is  a  sufficient  delivery 
of  it,  and  vests  a  special  property  in  it  as  against  an  officer  attaching  it 
against  the  general  owner.  {Nat.  Bank  Greeft  Bay  v.  Dearborn,  115 
Mass.  219.)  An  indorsement  of  a  bill  of  lading  passes  the  property  to 
the  indorsee.] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      55 


PIGOT'S   CASE. 

(ii   Rep.  at  fol.  27  a.) 

Decided:  That  if  an  obligee  himself  alters  a  deed, 
either  by  interlineation,  addition,  erasing,  or  by  draw- 
ing a  pen  through  the  line,  &c.,  although  it  is  in  words 
not  material,  yet  the  deed  is  void  ;  but  if  a  stranger 
without  his  privity  alters  the  deed  by  any  of  the  said 
ways  in  any  points  not  material,  it  shall  not  avoid  the 
deed.  

MASTER   V.    MILLER. 

(S.  L.  C.  Vol.  I.  p.  1254.) 
(4  T.  R.  340.) 

Decided:  That  an  unauthorized  alteration  in  a  bill  of 
exchange  after  acceptance,  whereby  the  payment  would 
be  accelerated,  avoids  the  instrument,  and  no  action  can 
be  maintained  upon  it,  even  by  an  innocent  holder  for 
valuable  consideration. 


ALDOUS   V.    CORNWELL. 

(L.  R.  3  Q-  B.  573.) 
(37  L.  J.  O.  B.  201.) 

Here  a  promissory  note  made  by  defendant  expressed 
no  time  for  payment,  and  while  it  was  in  the  possession 


56     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

of  the  payee  (the  plaintiff)  the  words  "on  demand" 
were  added  without  the  assent  of  the  maker.  This 
action  was  now  brought  on  the  note ;  and  on  the  plea 
of  the  defendant  that  he  did  not  make  it.  Decided: 
That  as  the  alteration  only  expressed  the  effect  of  the 
note  as  it  originally  stood,  and  was  therefore  immaterial, 
it  did  not  affect  the  validity  of  the  instrument. 

Notes  on  these  three  Cases.  —  Pigofs  Case  related  only  to  deeds,  but 
Master  v.  Miller  extended  its  doctrine,  as  far  as  regarded  material  alter- 
ations, to  bills  of  exchange,  and  subsequent  cases  have  applied  it  in- 
discriminately to  all  written  instruments  whether  under  seal  or  not. 
However,  it  is  not  now  entirely  good  law,  for  such  an  immaterial  alter- 
ation in  a  deed  or  other  writing  as  filling  in  a  date  where  a  blank  is  left, 
though  done  by  the  party,  does  not  at  all  vitiate  it.  Aldous  v.  Cornwell 
is  cited  as  being  a  recent  case,  and  plainly  showing  that  a  mere  imma- 
terial alteration  in  a  negotiable  instrument  does  not  affect  it.  If  a  mate- 
rial alteration  is  made  in  an  instrument  by  consent,  the  instrument  is  a 
new  contract  requiring  a  new  stamp,  unless  such  alteration  was  made 
to  correct  a  mistake  and  make  the  instrument  what  it  was  originally 
intended  to  be.  (Indermaur's  "  Principles  of  the  Common  Law,"  Am.  ed. 
pp.  151,  152.) 

[A  material  alteration  in  a  promissory  note  without  the  consent  of  the 
maker  adds  a  new  element  to  the  contract.  And  a  maker  may  success- 
fully defend  an  action  on  the  note  on  the  ground  that  he  never  signed  it. 
He  never  assented  to  the  liability  incurred  by  the  contract  declared  upon. 

The  addition  by  the  payee  of  the  words  "  or  order  "  to  a  promissory 
note  vitiates  it  in  the  hands  of  bond  fide  holder,  as  against  the  surety, 
although  the  maker  consents  to  the  alteration.  {Haines  v.  Dennett,  11 
N.H.  180.)  If  one  affix  his  name  to  a  negotiable  instrument  as  subscrib- 
ing witness,  after  its  execution,  it  is  materially  changed.  ( Thornton  v. 
Appleton,  29  Me.  298.)  After  the  acceptance  of  a  bill  of  exchange  which 
had  been  drawn  in  the  partnership  name,  the  names  of  the  individual 
members  of  the  firm  were  signed  under  the  drawer's  name  ;  and  it  was 
held  to  be  immaterial.     {Blair  v.  Bank  of  Tenn.,  11  Humph.  84.)] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      $J 


WAUGH   V.    CARVER. 

(S.  L.  C.  Vol.  I.  p.  1289.) 
(2  Hen.  Blackstone  235.) 

Here  certain  ship  agents  at  different  ports  entered 
into  an  agreement  to  share  in  certain  proportions  the 
profits  of  their  respective  commissions  and  the  discount 
on  the  bills  of  tradesmen  employed  by  them  in  repair- 
ing the  ships  consigned  to  them,  &c.  Decided:  That 
by  this  agreement  they  became  liable  as  partners  to  all 
persons  with  whom  either  contracted  as  such  agent, 
though  the  agreement  provided  that  neither  should  be 
answerable  for  the  acts  or  losses  of  the  other,  but  each 
for  his  own  ;  for  he  who  takes  the  general  profits  of  a 
partnership  must  of  necessity  be  made  liable  to  the 
losses,  and  he  who  lends  his  name  as  a  partner  becomes 
as  against  all  the  world  a  partner. 


COX  V.   HICKMAN. 

(8  H.  L.  Cas.  268.) 

Here  S  &  S  becoming  embarrassed  had  executed  a 
deed  assigning  their  property  to  trustees  whom  they 
empowered  to  carry  on  the  business  under  the  name  of 
the  Stanton  Iron  Company,  and  do  all  necessary  acts, 


58      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

with  power  to  the  majority  of  the  creditors  assembled 
at  a  meeting  to  make  rules  for  conducting  the  business 
or  to  put  an  end  to  it,  and  after  the  debts  had  been  dis- 
charged the  property  was  to  be  re-transferred  by  the 
trustees  to  S  &  S.  Two  of  the  creditors,  C  and  N, 
were  named  amongst  the  trustees  ;  C  never  acted  ;  N 
acted  for  six  weeks  and  then  resigned.  Some  time 
afterwards  the  other  trustees  who  continued  to  carry 
on  the  business  became  indebted  to  H,  and  gave  him 
bills  accepted  by  themselves  "  per  proc.  the  Stanton  Iron 
Company."  Held:  That  there  was  no  partnership  cre- 
ated by  the  deed,  and  that  consequently  C  and  N  could 
not  be  sued  on  the  bill  as  partners  in  the  company. 

Notes  on  these  two  Cases. —  Watigh  v.  Carver  is  given  in  "Smith's 
Leading  Cases,"  as  the  leading  authority  on  the  question  of  what  consti- 
tutes a  partnership,  but  Cox  v.  Hickman  is  a  later  case,  and  perhaps  a 
better  authority  to  quote  on  the  point.  A  partnership  may  be  either 
actual  or  nominal,  an  actual  partnership  being  where  two  or  more  per- 
sons agree  to  combine  money,  labor,  or  skill,  in  a  common  undertaking, 
sharing  profit  and  loss.  (Indermaur's  "  Principles  of  the  Common  Law,'" 
Am.  ed.  127,  128.)  The  mere  participation  in  profits  does  not  necessarily 
render  a  person  liable  as  a  partner,  but  it  is  a  strong  test  of  partnership, 
and  there  no  doubt  are  some  cases  in  which  upon  such  participation 
alone  it  may  be  inferred  as  a  fact,  that  a  partnership  does  exist,  but  this 
must  depend  on  the  circumstance  of  each  particular  case,  and  now  by 
28  &  29  Vict.  c.  86,  in  certain  cases  the  mere  participation  in  profits 
shall  not  be  any  test  whatever  of  the  existence  of  a  partnership,  it  being 
enacted  by  that  statute  that  none  of  the  following  events  shall  of  them- 
selves constitute  a  partnership  :  — 

(i)  The  advance  of  money  by  way  of  loan  to  a  person  engaged  in  a 
trade  or  undertaking  upon  a  contract  to  receive  interest  varying  with  the 
profits  or  a  share  of  the  profits. 

(2)  A  contract  for  the  remuneration  of  a  servant  or  agent  of  any  per- 
son engaged  in  a  trade  or  undertaking  by  a  share  of  the  profits. 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      59 

(3)  The  receiving  by  a  widow  or  child  of  the  deceased  partner  of  a 
trader  of  a  portion  of  the  profits  by  way  of  annuity. 

(4)  The  receiving  by  any  person  of  a  portion  of  the  profits  of  any 
business  in  consideration  of  the  sale  by  him  of  the  goodwill  of  such 
business.  But  in  the  case  of  bankruptcy,  &c.,  the  lender  of  any  such 
loan,  or  the  vendor  of  any  such  goodwill,  is  not  to  be  entitled  to  recover 
any  such  profit  as  aforesaid  until  the  claims  of  the  other  creditors  for 
valuable  consideration  have  been  satisfied. 

A  dormant  partner  is  one  who,  though  not  appearing  as  a  partner, 
yet  in  reality  is  one,  and  he  is  liable  in  common  with  other  partners,  and 
a  nominal  partner  is  one  who,  without  participating  in  the  profits,  yet 
lends  his  name  to  the  firm,  and  he  is  liable  to  third  parties  if  his  hold- 
ing himself  out  as  a  partner  has  come  to  their  knowledge,  and  they  gave 
credit  upon  the  strength  of  his  name.  Though  partners  are  jointly 
interested,  yet,  on  death  of  one,  his  share  forms  part  of  his  own  per- 
sonal estate,  and  though  on  the  death  of  one  the  legal  interest  in  choses 
in  action  survives  to  the  others,  yet  they  are  in  equity  but  trustees  of  the 
share  of  deceased  partner.  The  power  of  one  partner  to  bind  the  other 
or  others  depends  on  the  ordinary  principles  of  agency,  and  in  the  same 
way  that  a  general  agent  binds  his  principal  by  all  contracts  coming 
within  the  scope  of  his  agency,  so  one  partner  binds  the  other  or 
others  by  all  such  transactions  as  are  within  the  scope  of  the  partner- 
ship dealings,  though  the  partners  may  have  privately  agreed  that  no 
such  power  shall  exist.  Thus,  in  mercantile  partnerships  one  partner 
can  bind  the  others  by  a  bill  of  exchange,  though  one  member  of  a  firm 
of  solicitors  would  have  no  such  power ;  but  a  partner  cannot  bind  his 
firm  by  a  deed  unless  he  is  authorized  by  deed  so  to  do.  A  partner 
is  not  liable  on  contracts  entered  into  before  he  became  a  member  of 
the  firm. 

A  partnership  may  be  dissolved :  — 

1.  By  effluxion  of  time. 

2.  By  mutual  consent. 

3.  If  a  partnership  at  will  by  a  notice,  unless  such  dissolution  would 

be  in  ill  faith,  or  would  work  an  irreparable  injury. 

4.  By  a  general  assignment  by  one  or  more  partners,  or  by  execution 

on  the  partnership  effects  by  a  creditor  of  one  of  the  partners, 
or  by  an  assignment  of  his  share  in  the  business,  or  by  his 
bankruptcy,  or  outlawry,  or  attainder  for  treason  or  felony. 

5.  By  death  of  a  partner. 

6.  By  marriage  of  a  female  partner,  and 


60     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

7.  By  decree  of  the  Chancery  Division  of  the  High  Court  of  Justice 
which  will   be   granted  on   any  of   the   following   grounds :    (a) 
Where  the  partnership   originated  in  fraud,  misrepresentation, 
or  oppression;  or  (d)  Where  it  cannot  be  carried  on  at  all,  or 
at  least  according  to  the  stipulations  in  the  articles  or  without 
injury  to   all    the  partners ;   or  {c)  Where   an  active  partner  is 
permanently   insane,  or  incapable;   or  {a)  Where   a   person   is 
guilty  of  gross  misconduct  as  partner,  or  Where  there  are  con- 
tinual breaches  of  the  partnership  articles  by  one  of  the  partners. 
(See  Snell's  "  Principles  of  Equity,"  5th  ed.  499.) 
[The  doctrine  declared  by  the  case  of   Waugk  v.  Carver  is  followed 
in  New  York.     {Leggett  v.  Hyde,  58  N.Y.  272.)     But  the  rule  laid  down 
in  Cox  V.  Hickman  seems  to  be  the  better  one,  and  it  is  adopted  in  the 
case  of   Eastman  v    Clarke,  53  N.H.  276,  where  it  is  said  that  sharing 
profits  in  any  other  sense  than  that  of  principal  is  not  an  absolute  test 
of  one's  liability  as  partner.     But  one's  liability  as  partner  to  third  per- 
sons depends  upon  whether  or  not  he  has   personally,  or  by  an  agent, 
made  an  express  contract,  or  whether  he  is  estopped  to  deny  a  partner- 
ship within  the  doctrine  of  estoppel. 

If  the  parties  doing  business  together  intended  to  enter  into  a  partner- 
ship, an  agency  is  conferred  upon  each  one  of  them  to  bind  the  others  as 
principals,  and  each  holds  a  dual  position, — that  of  principal  and  agent. 
If  one  be  an  agent  merely,  he  cannot  be  bound  by  the  acts  of  his  asso- 
ciates;  but  if  by  the  conduct  of  all  of  them  (including  himself)  he  is 
made  to  appear  as  a  principal,  he  is  estopped  to  deny  a  partnership. 
(Demty  v.  Cabot,  6  Mete.  82.)] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      6l 


CUTTER   V.   POWELL. 

(S.  L.  C  Vol.  II.  p.  17.) 
(6  T.  R.  320.) 

Here  the  defendant  gave  to  one  Cutter  deceased  a 
note  as  follows  :  "  Ten  days  after  the  ship  Governor 
Parry,  myself  master,  arrives  at  Liverpool,  I  promise  to 
pay  to  Mr.  T.  Cutter  the  sum  of  thirty  guineas,  pro- 
vided he  proceeds,  continues,  and  does  his  duty  as  sec- 
ond mate  to  the  said  ship  from  hence  to  the  port  of 
Liverpool,  Kingston;  the  31st  of  July,  1793."  Cutter 
died  during  the  voyage,  and  this  action  was  brought  by 
his  representatives.  Decided :  That  deceased  not  hav- 
ing proceeded,  continued,  and  done  his  duty  for  the 
whole  voyage,  nothing  could  be  recovered  by  his 
representatives. 


Notes.  —  The  general  rule  is  that  while  the  special  contract  remains 
unperformed,  no  action  of  indebitattis  assumpsit  can  be  brought  for  any 
thing  done  under  it.  But  if  the  special  contract  has  been  abandoned  or 
rescinded  by  the  parties,  then  an  action  will  lie  for  what  has  been  done, 
by  the  person  suing  on  a  qtiaittiim  vieruit  —  that  is,  for  as  much  as  it  is 
worth ;  and  if  A  and  B  enter  into  a  special  contract,  and  A  refuses  to 
perform  his  part  of  it  or  renders  himself  absolutely  unable  to  do  so,  it 
is  open  to  the  other  party  to  at  once  rescind  such  special  contract,  and 
immediately  sue  on  a  qtiantimi  meruit  for  whatever  he  has  done  under 
the  contract  previously  (see  Planckiv.  Colbtirn,  8  Bing.  14). 

[The  above  case  was  decided  under  peculiar  circumstances,  and  is  not 
followed  in  similar  cases,  unless  the  entirety  of  the  contract  is  to  be  main- 


62      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

tained.  Where  one  agreed  with  another  to  work  "seven  months  at 
twelve  dollars  per  month,"  but  left  the  service  without  good  cause  before 
the  expiration  of  that  time,  it  was  held  that  he  could  not  recover  for  the 
service  rendered.  {Davis  v.  Maxwell,  12  Mete.  286.)  But  where  there 
is  an  entire  contract  for  personal  services,  there  is  an  implied  condition 
that  inability  to  perform  it,  caused  by  sickness,  accident,  or  death,  shall 
not  prevent  recovery  for  reasonable  value  of  services  rendered.  And 
this  class  of  contracts  is  distinguished  from  those  that  might  be  per- 
formed by  an  agent.  {Ryan  v.  Daytoji,  25  Conn.  188.)  And  one  may 
recover  for  his  services,  although  he  fails  to  complete  his  contract  after 
regaining  his  health.     (Fefiton  v.  Clark,  11  Vt.  557.)] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      63 


BICKERDIKE   v.    BOLLMAN. 

(S.  L.  C.  Vol.  II.  p.  66.) 
(r  T.  R.  405-) 

Decided:  That  notice  of  dishonor  of  a  bill  is  not 
necessary  if  the  drawer  had  no  effects  in  the  hands  of 
the  drawee,  so  that  he  could  not  be  injured  for  want 
of  notice. 


Notes. — The  result  of  this  decision  may  be  illustrated  thus:  A  draws 
on  B,  who  accepts  for  A's  accommodation,  and  on  presentment  to  B  the 
bill  is  dishonored;  to  entitle  the  holder  to  sue  A  (the  drawer)  it  is  iwt 
necessary  to  give  him  any  notice  of  dishonor,  because  as  he  had  no 
assets  in  B's  hands,  he  cannot  possibly  be  injured.  Were  it  an  ordinary 
acceptance,  of  course  the  drawer  could  not  be  sued  unless  notice  of 
dishonor  was  duly  given  to  him.  But  it  has  been  decided  that  the  princi- 
ple of  this  case  must  not  be  extended,  and  notice  must  be  given  if  the 
drawer  have  reason  to  expect  that  some  third  party  will  provide  for 
payment  of  the  bill ;  and  if  the  drawer  had  effects  in  the  drawee's  hands 
at  the  time  when  the  bill  was  drawn,  he  does  not  lose  his  right  to 
notice,  although  before  the  time  of  payment  he  may  have  ceased  to 
have  any. 

The  proper  time  for  giving  notice  of  dishonor  when  the  person  lives 
at  or  near  the  place  of  dishonor,  or  where  the  giver  of  notice  himself 
received  notice,  is  such  a  time  that  it  may  be  received  by  the  expiration 
of  the  day  after  the  dishonor,  or  after  the  time  when  the  giver  of  the 
notice  himself  received  notice,  for  each  indorser  "  has  his  day  "  for  giv- 
ing notice.  When  the  person  is  not  living  at  or  near  the  place  it  is 
enough  to  give  notice  by  the  post  of  the  next  post  day,  or  when  it  is  a 
foreign  bill,  by  the  next  ordinary  conveyance.  When  the  bill  is  at  a 
banker's  the  banker  has  a  day  to  give  notice  to  customer,  and  the  cus- 
tomer, another  day  to  give  notice  to  the  prior  parties. 


64     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

A  check  should  be  presented  for  payment  by  the  day  after  the  day 
of  its  receipt,  or,  if  the  parties  live  at  a  distance,  forwarded  for  present- 
ment within  that  time,  and  the  result  of  this  time  not  being  observed  is 
to  exonerate  the  drawer  of  the  check  if  the  banker  fails  in  the  mean 
time,  having  assets  of  the  drawer.  It  is  not  necessary  to  give  notice  of 
dishonor  of  a  check  if  there  were  no  sufficient  effects  at  the  time  when 
the  drawer  would  naturally  expect  the  check  to  be  presented  and  the 
drawer  had  no  reasonable  expectation  that  the  check  would  be  cashed. 

[When  the  drawer  of  a  bill  of  exchange  knozas  that  it  will  not  be 
honored  by  the  drawee,  he  will  not  be  entitled  to  notice  of  dishonor, 
because  he  cannot  be  injured  from  want  of  notice.  Knowledge  is  im- 
puted to  him  if  he  have  no  funds,  or  no  reasonable  expectation  of  hav- 
ing any,  in  the  hands  of  the  drawee,  or  should  he  intercept  funds  on 
the  way  to  the  drawee  and  have  no  right  to  draw.  So,  too,  where  one 
partner  draws  on  the  firm.  {Hopkirk  v.  Page,  2  Brockenbrough  C.  C.  20.) 
War  between  the  States  in  which  the  drawer  and  holder  reside  will 
suspend  notice  of  dishonor  until  peace  is  restored.  {House  v.  Adams, 
48  Penn.  St.  261.) 

If  the  indorser  of  a  bill  of  exchange  be  an  accommodated  party,  he  is 
not  entitled  to  notice  of  dishonor  for  non-payment.  {^French  v.  The  Bank 
of  Columbia,  4  Cranch  153.)] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      6$ 


I'ANSON   V.    STUART. 

(I  T.  R.  748.) 

Decided :  That  to  print  of  any  one  that  he  is  a  swin- 
dler, is  a  libel  and  actionable,  for  it  is  not  necessary,  in 
order  to  maintain  an  action  for  libel,  that  the  imputa- 
tion should  be  one  which  if  spoken  would  be  actionable 
as  a  slander. 

N'ofes.  —  The  legal  point  to  remember  in  this  case  is  that  writing  may 
constitute  a  cause  of  action  as  a  libel,  when  the  words  if  only  spoken 
would  not  without  proof  of  special  damage.  Words  which  are  slander 
ous  in  themselves,  i.e.,  will  support  an  action  without  any  proof  of  spe- 
cial damage,  are  words  which  impute  (1)  some  offence  punishable  by  the 
criminal  law,  or  that  a  man  has  been  actually  convicted ;  or  (2),  some 
misconduct  or  incapacity  in  the  plaintiff's  trade,  profession,  or  office ;  or 
(3),  that  the  plaintiff  actually  labors  under  a  contagious  disorder,  the 
imputation  of  which  may  exclude  him  from  society ,  [or  (4),  an  imputation 
of  disherison.] 

It  may  here  be  noted  that  it  was  decided  in  the  case  of  The  Pnidential 
Assurance  Co.  v.  Knott,  L.  R.  10  (Ch.)  142;  44  L.  J.  (Ch.)  192,  that  the 
Court  had  no  power  to  interfere  by  way  of  injunction  to  restrain  the 
publication  of  a  libel,  as  such,  even  though  injurious  to  property ;  but 
in  the  more  recent  cases  of  Thorley  'j  Cattle  Food  Co  v.  Massam,  6  Ch. 
D.  582;  46  L.  J.  (Ch.)  713,  and  Thomas  v.  Williams  (14  Ch.  D.  864; 
49  L.  J.  (Ch.)  605),  it  has  been  held  that  notwithstanding  the  above  case, 
it  has  now  power  to  interfere  by  way  of  injunction  by  force  of  the  pro- 
vision in  the  Judicature  Act,  1873,  sect.  25,  sub-sect.  8.  Having  reference 
to  the  wide  words  of  that  enactment,  these  later  decisions  are  no  doubt 
correct. 

[To  publish  language  imputing  wilful  falsehood  to  a  school-teacher 
is  libellous,  and  was  held  actionable.     {Lindley  v.  Norton,  27  Conn.  58.) 


66     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

But  there  must  be' a  publication  of  the  words  to  show  that  one  has  been 
libelled.  Writing  a  letter  to  one  which  contains  slanderous  words 
against  him  is  not  a  publication.  But  where  one  requested  another  to 
write  a  letter  to  the  plaintiff,  to  which  the  former  signed  his  name  and 
kept  a  copy,  and  stated  the  contents  of  it,  without  producing  the  copy, 
it  was  held  that  a  publication  had  been  shown.  {Adams  v.  Lawson, 
17  Gratt.  250.)     The  truth  of  the  charge  in  civil  cases  is  a  defence.] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      6/ 


CLAYTON    V.    BLAKEY. 

(S.  L.  C.  Vol.  II.  p.  io6.) 
(8  T.  R.  3.) 

Decided:  That  though  by  the  Statute  of  Frauds 
(29  Car.  2,  c.  3,  s.  i),  it  is  enacted  that  all  leases  by 
parol  for  more  than  three  years  shall  have  the  effect  of 
estates  at  will  only,  such  a  lease  may  be  made  to  enure 
as  a  tenancy  from  year  to  year. 


DOE    d.    RIGGE   v.    BELL. 

(S.  L.  C.  Vol.  II.  p.  100.) 
(5  T.  R.  471.) 

Decided:  That,  although  a  lease  is  void  by  the  Statute 
of  Frauds  (29  Car.  2,  c.  3,  s.  i),  and  therefore  the  ten- 
ant holds  not  under  the  lease,  but  as  tenant  from  year 
to  year,  yet  such  holding  is  governed  by  the  terms  of 
the  lease  in  other  respects. 

Notes  on  these  two  Cases.  —  The  principle  upon  which  the  tenancy, 
which  by  29  Car.  2,  c.  3,  s.  i,  it  is  declared,  not  being  created  by  writing, 
shall  be  only  a  tenancy  at  will,  is  converted  into  a  tenancy  from  year  to 
year,  is,  that  originally  in  accordance  with  the  statute  it  is  but  an  estate 
at  will,  but  afterwards  by  the  payment  of  rent,  or  from  other  circum- 
stances  indicative   of    an   intention   to   create   such    yearly   tenancy,    it 


68      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

becomes  converted  into  a  tenancy  from  year  to  year,  to  which  latter 
certain  tenancy  the  Courts  always  lean  in  preference  to  the  uncertain 
tenancy  of  an  estate  at  will.  For  the  rule  to  determine  when  a  tenancy 
is  at  will,  and  when  for  years,  see  Richardson  v.  Langridge  (Indermaur's 
"  Con.  &  Eq.  Cas.,"  4th  ed.  p.  i). 

The  decision  in  Doe  d.  Rigge  v.  Bell,  that  the  holding  is  regulated  by 
the  other  tenns  of  the  lease,  arises  rather  as  a  matter  of  evidence  than 
of  law.  In  that  case  the  lease  itself  was  void,  but  the  same  rule  applies 
to  the  case  of  a  tenant  holding  over  after  the  expiration  of  his  term 
under  a  valid  lease,  for  in  such  a  case  after  there  has  been  a  payment 
and  acceptance  of  subsequent  rent,  the  law,  in  the  absence  of  any  evi- 
dence to  the  contrary,  implies  that  he  continues  to  hold  on  such  of  the 
terms  of  the  previous  demise  as  are  applicable  to  a  tenancy  from  year 
to  year. 

[An  estate  held  under  a  parol  lease  which  is  declared  by  statute  to 
be  a  tenancy  at  will  only,  may  grow  into  an  estate  from  year  to  year. 
{Barlow  v.  Wainwright,  22  Vt.  93.)  But  in  Maine,  Massachusetts,  and 
New  Hampshire,  the  courts  tend  to  hold  that  an  estate  declared  by  statute 
to  be  a  tenancy  at  will  cannot  grow  into  an  estate  from  year  to  year.  ( Ellis 
V.  Page,  I  Pick.  45;  Davis  v.  Thompson,  13  Me.  214;  Whitney  \.  Swett, 
2  Fost.  ID.)  In  the  latter  case,  it  was  held  that  written  receipts  showing 
payment  of  rent  from  year  to  year  or  from  month  to  month  proved  no 
interest  in  the  land  greater  than  a  tenancy  at  will.] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES,      69 


ELWES   V.    MAWE. 

(S.  L.  C.  Vol.  II.  p.  169.) 
(3  East  38.) 

Decided:  That  although  tenants  may  remove  fixtures 
erected  for  the  purposes  of  their  trades,  yet  tenants 
in  agriculture  cannot  remove  fixtures  erected  for  the 
purposes  of  husbandry. 

Notes.  —  This  case  is  useful  to  cite  on  the  general  principle  of  fix- 
tures, but  the  law  contained  in  it  is  now  altered,  by  14  &  15  Vict.  c.  25, 
and  38  &  39  Vict.  c.  92.  The  first  Act  (s.  3)  provides  that  buildings, 
engines,  &c.,  erected  for  agricultural  purposes,  with  the  consent  in  writ- 
ing of  the  landlord,  shall  remain  the  property  of,  and  removable  by,  the 
tenant,  so  that  he  do  no  injury  in  the  removal  thereof;  but  before  re- 
moval one  month's  notice  shall  be  given  to  the  landlord,  who  has  the 
option  of  purchasing.  The  latter  Act  (which  is  the  Agricultural  Hold- 
ings Act,  1875),  also  contains  a  provision  (sect.  53)  on  this  subject, 
under  which  such  fixtures  may  be  removed  although  not  erected  with  the 
consent  in  writing  of  the  landlord,  but  a  month's  notice  must  still  be 
given  prior  to  removal.  In  the  one  case,  however,  of  a  steam-engine 
erected  by  a  tenant  this  provision  only  applies  if  the  tenant  has  before 
erecting  it  given  to  his  landlord  notice  of  his  intention  so  to  do,  and  the 
landlord  has  not  by  notice  in  writing  to  the  tenant  objected  to  the 
erection  thereof. 

The  law,  then,  as  to  fixtures  shortly  stands  thus :  The  tenant  may 
remove  those  erected  for  the  purposes  of  trade,  domestic  use,  or  orna- 
ment;  or  agricultural  fixtures,  as  provided  by  the  above  statutes;  but 
all  such  fixtures  must  be  removed  before  the  expiration  of  the  term,  or 
during  such  further  period  as  the  tenant  holds  under  a  right  to  consider 
himself  as  tenant,  otherwise  they  become  the  property  of  the  landlord, 
being  considered  as  a  gift  in  law  to  him. 


70     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

Where  either  freeholds  or  leaseholds  having  fixtures  thereon  are 
mortgaged,  the  fixtures  will  pass  to  the  mortgagee,  and  as  to  the  ques- 
tion of  whether  such  a  mortgage  is  within  the  Bills  of  Sale  Act,  and 
requires  to  be  registered,  the  rule  before  the  Bills  of  Sale  Act,  1878,  was 
that  it  would  be  if  the  mortgagee  was  enabled  under  the  mortgage  deed 
to  deal  with  the  fixtures  separately  from  the  building,  but  not  otherwise. 
{Ex  parte  Barclay,  L.  R.  9  Ch.  App.  576;  Ex  parte  Daglish,  L.  R.  8  Ch. 
App.  1072.)  The  subject  is,  however,  novy  governed  by  the  Bills  of  Sale 
Act,  1S7S  (41  &  42  Vict.  c.  31,  s.  7). 

[When  a  chattel  is  attached  to  the  realty,  or  incorporated  with  the 
structure  of  which  it  forms  a  part,  it  becomes  a  part  of  the  fee. 

In  determining  the  question  whether  or  not  a  chattel  has  become  a 
fixture,  the  courts  now  regard  rather  the  purpose  for  which  it  is  em- 
ployed than  the  physical  connection  between  it  and  the  realty.  ( Wad- 
leigh  V.  Janovim,  41  N.H.  503.)  Reservations  should  be  made  in  the 
deed  itself :  oral  agreements  are  not  binding.] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      /I 


WAIN   V.   WARLTERS. 

(S.  L.  C.  Vol.  II.  p.  243.) 
(5  East  10.) 

Decided:  That  by  the  word  "agreement"  in  the 
Statute  of  Frauds  (29  Car.  2,  c.  3,  s.  4),  must  be  under- 
stood not  only  the  promise  itself,  but  also  the  consider- 
ation for  the  promise  ;  so  that  a  promise  appearing  to 
be  without  consideration  on  the  face  of  the  written 
agreement  was  nudum  pactum,  and  gave  no  cause  of 
action. 

Notes.  —  This  decision  is  now  subject  to  the  statute  19  &  20  Vict. 
c.  97,  s.  3,  which  provides  that  a  guarantee  shall  not  be  invalid  by  rea- 
son only  that  a  consideration  does  not  appear  in  writing,  or  by  necessary 
inference  from  a  written  document.  But  of  course  there  must  even  here 
be  a  consideration,  though  it  need  not  appear  in  the  written  document. 

In  the  case  also  of  bills  of  exchange  and  promissory  notes,  by  the 
custom  of  merchants  it  is  not  necessary  that  the  consideration  should 
appear  on  the  face  of  the  instrument. 

[In  this  country  there  has  been  considerable  opposition  to  the  doc- 
trine of  Wain  v.  Warlters,  arising  chiefly,  it  would  seem,  from  the  case  of 
Egertoti  V.  Mathews  (6  East.  307),  where  the  Court  discriminates  between 
the  requisitions  of  the  fourth  section  of  the  Statute  of  Frauds,  wherein 
the  word  "agreement''  is  found,  and  the  requisitions  of  the  seventeenth 
section,  wherein  the  word  "  bargain  "  is  used.  But  the  substantial  grounds 
upon  which  Wain  v.  Warlters  rests  is  the  particular  object  of  the  fourth 
clause,  which  requires  a  complete  memorandum  in  writing  as  proof  of 
the  contract. 

Although  the  word  "  agreement  "  is  found  in  the  clause  requiring  a 
memorandum,  in  the  statutes  of  Maine,  Vermont,  Massachusetts,  Con- 


72      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

necticut,  North  Carolina,  Ohio,  and  Missouri,  yet  the  doctrine  of  that 
case  has  been  repudiated;  while  in  New  Hampshire,  New  York,  New 
Jersey,  Delaware,  Maryland,  South  Carolina,  Georgia,  Indiana,  Illinois, 
Michigan,  Wisconsin,  and  Minnesota,  the  doctrine  has  been  approved. 

Owing  to  the  wording  of  the  statutes  in  some  of  the  other  States,  the 
consideration  need  not  be  expressed  in  the  memorandum.  (Browne  on 
the  Statute  of  Frauds,  s.  391.)] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      73 


DALBY   V.    INDIA   AND    LONDON    LIFE    AS- 
SURANCE   COMPANY. 

(S.  L.  C.  Vol.  II.  p.  282.) 
(15  C  B.  365.) 

Decided:  (i)  That  the  contract  of  life  assurance  is  a 
contract  to  pay  a  certain  sum  of  money  on  the  death  of 
a  person  in  consideration  of  the  due  payment  of  a 
certain  annuity  for  his  life,  and  that  it  is  not  a  mere 
contract  of  indemnity,  as  policies  against  fire  and 
marine  risks. 

(2)  That  the  interest  necessary  under  14  Geo.  3, 
c.  48,  s.  3,  is  an  interest  at  the  time  of  effecting  the 
insurance  and  not  at  the  time  of  the  recovery  of  money  ; 
therefore  although  at  the  time  of  recovery  the  interest 
is  gone,  yet  if  at  the  time  of  effecting  the  insurance 
the  person  effecting  it  had  a  proper  interest,  he  can 
recover. 


HEBDON    V.   WEST. 

(3  B.  &  S.  579-) 

Decided:  That,  where  there  are  several  policies  ef- 
fected with  different  offices,  the  insured  can  recover  no 
more  from  the  insurers,  whether  on  one  policy  or  many, 
than  the  amount  of  his  insurable  interest. 


74     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

N'otes  on  these  two  Cases.  —  The  case  of  Dalby  v.  India  and  London 
Life  Assurance  Company  distinctly  overrules  that  of  Godsall  v.  Boldero 
(9  East.  72 1  (which  will  be  found  set  out  in  "Smith's  Leading  Cases," 
vol.  ii.  p.  262),  where  it  had  been,  in  fact,  decided  that  life,  like  fire 
assurance,  was  but  a  contract  of  indemnity.  The  above  case  is  one  of 
.the  greatest  importance,  as  plainly  laying  down  the  rule  that  if  a  person 
has  an  interest  at  the  time  of  effecting  the  life  policy,  he  can  afterwards 
recover,  although  his  interest  has  gone  ;  thus,  if  a  creditor  insures  his 
debtor's  life,  although  he  is  afterwards  paid,  yet  he  can  recover  from  the 
insurance  office. 

It  should  be  mentioned  that  the  statute  (14  Geo.  3,  c  48)  referred  to 
in  the  above  case,  does  not  e.xtend  to  prevent  individuals  from  effecting 
insurances  upon  their  own  lives,  provided  that  it  be  done  bo7ia  fide. 

A  wife  has  an  insurable  interest  in  the  life  of  her  husband,  but  a  hus- 
band, parent,  or  child  has  no  insurable  interest  in  the  lives  of  a  wife, 
child,  or  parent,  unless  he  or  she  has  some  interest  in  property  dependent 
on  their  lives. 

Perfect  good  faith  is  necessary  in  effecting  a  policy  of  insurance,  and 
any  fraud,  misrepresentation,  or  even  non-communication  of  material 
circumstances,  by  the  party  insuring,  or  his  agents,  will  render  the  policy 
void.     The  maxim  caveat  emptor  has  here  no  application. 

On  the  subject  of  marine  insurance  generally,  and  what  is  recoverable 
under  special  circumstances  on  such  a  policy,  the  student  is  referred  to 
the  recent  case  of  Aitcheson  v.  Lohre,  H.  L.  49  L.  J.  Q.  B.  123;  L.  R. 
4  App.  Cas.  755. 

On  the  subject  of  fire  insurance  the  recent  case  of  Raytter  v.  Preston 
L.  R.  14  Ch.  D.  297,  affirmed  on  appeal  (James,  L.  J.,  dissenting),  50 
L.  J.  Ch.  472,  is  of  considerable  importance.  In  that  case  there  was  a 
contract  for  the  sale  of  a  house  which  had  been  insured  by  the  vendor 
against  fire.  After  the  date  of  the  contract,  but  before  the  date  fixed 
for  completion,  the  house  was  burnt  and  the  vendor  received  the  insur- 
ance money  from  the  office.  The  contract  contained  no  reference  to  the 
insurance.  It  was  held  that  the  purchaser  was  not  entitled  as  against 
the  vendor  to  the  benefit  of  the  insurance,  either  by  way  of  abatement 
of  the  purchase  money  or  re-instatement  of  the  premises.  It  was,  how- 
ever, left  unsettled  whether — a  contract  of  fire  insurance  being  only  a 
contract  of  indemnity  —  the  insurance  company  in  such  a  case  could  not 
compel  the  vendor  to  refund  the  money  they  had  paid  him,  if  he  got  his 
full  purchase  money  from  the  purchaser. 

[It  is  believed  that  there  is  no  case  in  this  country  in  point  with  Dalby 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      75 

V.  India  (S^<r.  Assurance  Co.  But  the  Court  in  the  Insurance  Co.  v. 
Bailey,  13  Wall.  616,  said  that  the  contract  of  life  insurance  was  not 
one  of  indemnity,  and  that  the  insured  need  not  necessarily  have  a  pecu- 
niary interest  in  the  life  of  the  cestui  que  vie,  except  at  the  inception  of 
the  contract. 

An  equitable  lien  upon  propertj'  is  an  insurable  interest ;  as  where  a 
vendor  made  an  assignment  of  his  interest  in  a  contract  for  the  sale  of 
real  estate,  which  contract  provided  for  insurance  upon  the  estate  by  the 
vendee  for  the  benefit  of  the  vendor,  such  assignment  was  held  to  create 
an  equitable  lien  in  favor  of  the  assignee,  who  was  entitled  to  the  insur- 
ance money  under  a  policy  effected  in  the  name  of  the  vendee.  And  the 
insurers,  after  notice,  are  trustees  of  the  fund  for  his  benefit.  ( Cromwell 
V.  The  Brooklyn  Fire  Ins.  Co.,  44  N.Y.  42.)] 


"J^     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


GEORGE   V.    CLAGETT. 

(S.  L.  C.  Vol.  II.  p.  125.) 
(7  T.  R.  359.) 

Decided :  That  if  a  factor  sells  goods  as  his  own,  and 
the  buyer  does  not  know  of  any  principal  other  than 
the  factor,  and  the  principal  afterwards  declares  him- 
self, and  demands  payment  of  the  price  of  the  goods, 
the  buyer  may  set  off  any  demand  he  may  have  on  the 
factor  against  the  demand  made  by  the  principal. 


N'otes.  —  In  order  to  constitute  a  valid  defence  within  the  rule  in  this 
case  all  that  is  necessary  to  be  shown  is  that  the  contract  was  made  by 
a  person  whom  the  plaintiff  had  intrusted  with  the  possession  of  goods, 
that  that  person  sold  them  as  his  own  goods  in  his  own  name  as  principal 
with  the  authority  of  the  plaintiff,  that  defendant  dealt  with  him  as,  and 
believed  him  to  be  the  principal  in  the  transaction,  and  that  before  the 
defendant  was  undeceived  in  that  respect  the  set-off  accrued.  However, 
the  rule  only  applies  fully  where  the  party  contracting  has  not  the 
means  of  knowing  that  the  party  with  whom  he  contracts  is  but  an 
agent.  If  he  have  the  means  of  knowing,  and  though  he  may  not  be 
expressly  told,  still  must  be  supposed  to  have  known,  that  he  was  deal- 
ing, not  with  a  principal,  but  with  an  agent,  the  reason  for  the  rule  ceases, 
and  then  cessante  ratione,  cessat  lex  (2  S.  L.  C.  127). 

It  has  been  decided,  and  somewhat  extending  the  rule  in  the  above 
case  but  yet  strictly  within  its  principle,  that  though  the  buyer  knew  at 
the  time  of  buying  of  the  person  being  a  factor,  yet  he  is  entitled  to  this 
benefit  of  set-off  if  he  honestly  believed  that  the  factor  was  entitled  to 
sell  and  was  selling  to  repay  himself  advances  made  for  his  principal. 
(  Warner  v.  McKay,  i  M.  &  W.  595.) 

It  may  be  well   to  note  here   the   powers  of  factors   over  goods  in- 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.       "JJ 

trusted  to  their  possession.  At  common  law  the  mere  position  of  prin- 
cipal and  factor  confers  a  power  to  sell  at  such  times  and  prices  as  the 
factor  may  in  his  discretion  think  best,  but  does  not  confer  any  power 
to  pledge. 

[A  factor  has  a  lien  on  the  goods  of  his  principal  for  his  commissions 
and  any  money  he  has  advanced  for  the  principal.  The  factor  may 
pledge  the  goods  for  his  advances  and  the  amount  of  his  lien,  and  for 
the  payment  of  duties  or  any  charge  allowed  by  the  usage  of  trade.  He 
has  a  special  property  in  the  goods,  and  may  sell  them  in  his  own  name, 
always  acting  within  the  scope  of  his  authority,  and,  in  the  absence  of  it, 
according  to  the  usages  of  trade. 

His  creditors  in  case  of  bankruptcy  cannot  claim  property  remitted 
by  his  principal  when  its  identity  can  be  clearly  established. 

Bond  fide  purchasers  dealing  with   him  as  principal,  and  not  having 
means  of  ascertaining  the  contrary,  will  be  protected. 

The  presumption  of  exclusive  credit  may  be  rebutted.] 


78     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


ADDISON   V.    GANDESEQUI. 

(S.  L.  C.  Vol.  II.  p.  342.) 
(4  Taunt.  574.) 

In  this  case  the  defendant,  being  abroad  and  desirous 
)f  purchasing  certain  goods,  came  to  England  and  went 
to  his  agents,  L.  &  Co.  These  agents  purchased  the 
goods  for  him  from  the  plaintiffs,  he  selecting  them, 
and  the  plaintiffs  debited  the  agents,  L.  &  Co.,  with  the 
price.  Decided:  That  the  plaintiffs  could  not  now 
recover  the  price  against  defendant,  having  known  who 
the  principal  was,  and  yet  debited  the  agents. 


PATERSON   V.    GANDESEQUI. 

(S.  L.  C.  Vol.  II.  p.  342.) 
(15  East,  62.) 

The  facts  in  this  case  were  of  a  similar  nature  to 
those  of  the  previous  one,  and  on  the  trial  the  plaintiff 
had  been  nonsuited.  A  rule  nisi  was  afterwards  ob- 
tained to  set  aside  the  nonsuit,  and  on  argument  it 
was  made  absolute,  the  Court  considering  that  there 
was  some  doubt  whether  or  not  the  plaintiff  knew  of 
the  defendant  being  the  principal.     But  the  following 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      79 

general  principles  were  laid  down,  agreeing  with  the 
previous  case  :  That  if  the  seller  of  goods,  knowing  at 
the  time  that  the  buyer,  though  dealing  with  him  in 
his  own  name,  is  in  truth  the  agent  of  another,  elect 
to  give  the  credit  to  such  agent,  he  cannot  afterwards 
recover  the  value  against  the  known  principal :  but  if 
the  principal  be  not  known  at  the  time  of  the  purchase 
made  by  the  agent,  it  seems  that,  when  discovered,  the 
principal  or  the  agent  may  be  sued,  at  the  election  of 
the  seller;  unless  where,  by  the  usage  of  trade,  the 
credit  is  understood  to  be  confined  to  the  agent  so  deal- 
ing, as  particularly  in  the  case  of  principals  residing 
abroad. 


THOMSON   V.   DAVENPORT. 

(S.  L.  C.  Vol.  II.  p.  342.) 
(9  B.  &  C.  78.) 

Here,  Davenport  sold  goods  to  one  M'Kune,  who 
told  him  he  was  buying  them  on  account  of  another 
person,  bnt  did  not  mention  the  principal's  name,  and 
Davenport  did  not  inquire  for  it,  but  debited  M'Kune. 
M'Kune  failed,  and  Davenport  sued  Thomson,  who 
was  the  principal,  for  the  price.  The  verdict  was  given 
for  the  plaintiffs,  and  was  now  affirmed  on  writ  of 
error,  it  being  decided:  That  the  seller  might  sue  the 
principal  for  the  price,  he  not  having  known  who  the 
principal  was  at  the  time. 


80     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

Notes  on  these  three  Cases.  —  The  above  are  the  leading  cases  on  the 
subject  of  principal  and  agent,  and  are  usually  cited  together  as  being 
very  closely  connected,  and  jointly  bearing  on  the  point.  The  case  of 
George  v.  CUigett  (p.  76)  is  sometimes  confused  with  these  three  cases, 
and  for  easy  reference  and  consideration  with  them,  it  is  here  placed 
immediately  preceding  them.  That  was  a  case  where  the  oaoner  of  the 
goods  employed  an  agent  to  sell  them,  and  afterwards  declared  himself : 
but  these  three  cases  are  where  goods  were  purchased  by  an  agent,  and 
the  point  is,  who  is  liable  for  the  price.  The  distinction  is  therefore 
evident. 

An  agent's  authority  may  be  determined  in  any  of  the  following 
ways  .  — 

1.  By  revocation. 

2.  By  the  agent's  renunciation  with  principal's  consent. 

3.  By  principal's  death. 

4.  By  principal's  bankruptcy. 

5.  By  fulfilment  of  the  commission. 

6.  By  expiration  of  time. 

7.  When  the  agent  is  a  feme  sole,  by  her  marriage. 

In  order  to  determine  the  agent's  authority  by  revocation  means 
should  be  used  to  make  known  such  revocation  as  fully  as  the  employ- 
ment was  known.  To  correspondents  express  notice  should  be  given, 
and  to  strangers  a  general  notice  in  the  "Gazette."  (See  hereon  Inder- 
maur's  "  Principles  of  the  Common  Law,"  Am.  ed.  pp.  120,  121.) 

[Death  will  not  revoke  an  agency  when  the  agent  has  a  pecuniary 
interest  in  the  subject-matter  of  his  agency;  but  such  interest  must  be 
a  vested  one. 

The  right  of  election  in  the  matter  of  holding  the  principal  or  agent 
will  of  course  be  forfeited  by  a  final  determination  to  proceed  against 
either  when  the  creditor  has  full  knowledge  of  both.  {Smith  v.  Pbmi- 
mer,  5  Wharton  89.)  But  the  seller  must  have  actual  knowledge  as  to 
who  the  principal  is.  Means  of  knowledge  is  not  sufficient  to  estop 
him,  where  he  has  charged  the  goods  to  the  agent  of  a  purchaser.  (Ray- 
mond \.  Crown  &>  Eagle  Mills,  2  Mete.  319.)] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      8 1 


MANBY  V.   SCOTT. 

(S.  L.  C.  Vol.  II.  p.  417.) 
(i  Sid.  109.) 

Decided:  That  the  wife's  contract  does  not  bind  the 
husband  unless  she  act  by  his  authority. 


MONTAGUE   v.   BENEDICT. 

(S.  L.  C.  Vol.  II.  p.  435.) 
(3  B.  &  C.  631.) 

This  was  an  action  against  a  husband  for  certain 
goods  —  «^/ necessaries  —  delivered  to  the  wife  of  the 
defendant.  Decided :  That  as  the  goods  were  not 
necessaries,  and  there  was  no  evidence  to  go  to  the 
jury  of  any  assent  of  the  defendant  (the  husband)  to 
the  contract  made  by  his  wife,  the  action  could  not  be 
maintained. 


SEATON  V.   BENEDICT. 

(S.  L.  C.  Vol.  II.  p.  417.) 
(5  BiNG.  28.) 

This  was  an  action  against  the  same  defendant  as  in 
the  previous  case.     The  claim  was  for  certain  goods  — 


82      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

which  were  in  the  nature  of  necessaries  —  delivered  to 
the  wife  of  the  defendant.  It  was,  however,  shown  that 
the  defendant  had  supplied  his  wife's  wardrobe  well 
with  all  necessary  articles.  Decided:  That  a  husband 
who  supplies  his  wife  with  necessaries  in  accordance 
with  her  station  *is  not  liable  for  debts  contracted  by 
her  without  his  previous  authority  or  subsequent  sanc- 
tion. 

Notes  on  these  three  Cases.— Manby  v.  Scott  is  a  very  old  case  which 
occurred  in  the  reign  of  Charles  IL,  and  seems  to  be  cited  in  "  Smith's 
Leading  Cases,"  in  some  degree,  as  a  specimen  of  "  that  laborious  pro- 
cess of  investigation  to  which  important  questions  of  law  were  anciently 
submitted."  The  general  principle  established  in  that  case  is,  however, 
still  good  law ;  but  it  must  be  remembered  that,  with  regard  to  neces- 
saries supplied  to  the  wife,  it  may  not  be  necessary  to  show  any  specific 
authority  of  the  husband  to  charge  him,  for  the  wife  from  her  position 
has  an  implied  authority  for  that  purpose  unless  the  contrary  appears ; 
and  in  Seaton  v.  Benedict  the  contrary  did  appear,  for  the  wife  was 
sufficiently  supplied  with  necessaries. 

It  has  been  decided  in  the  case  of  Jolly  v.  Rees  (15  C.  B.  (N.S.)  628), 
that  any  agreement  between  husband  and  wife  or  the  fact  of  the  husband 
forbidding  the  wife  to  pledge  his  credit,  though  not  communicated  to  the 
tradesman,  will  be  a  bar  to  any  action  against  the  husband. 

This  decision  has  now  been  thoroughly  confirmed  by  the  recent  case 
of  Debenham  v.  Mellon  (  (H.  L.)  50  L.  J.  Q.  B.  155 ;  L.  R.  6  Q.  B.  D.  24), 
which  decides  that  where  husband  and  wife  live  together,  and  the  hus- 
band has  privately  forbidden  his  wife  to  buy  goods  on  credit,  he  is  not 
liable  for  the  price  of  articles  of  dress,  although  suitable  to  her  rank 
in  life,  supplied  to  her  by  a  tradesman  with  whom  she  has  not  dealt 
before,  but  to  whom  the  fact  that  she  was  so  forbidden  has  not  been 
communicated. 

It  should  here  be  mentioned,  that  if  a  man  takes  a  woman  to  his 
house  and  lives  with  her  as  his  wife,  she  stands  in  the  same  position 
with  regard  to  her  power  to  charge  him  as  if  she  were  actually  married 
to  him. 

The  whole  power  which  a  wife  has  to  bind  her  husband  for  neces- 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      83 

saries  arises  from  the  fact  that  during  cohabitation  there  is  a  pre- 
sumption arising  from  the  very  circumstance  of  the  cohabitation  of  the 
husband's  assent  to  contracts  made  by  his  wife  for  necessaries  suitable 
to  his  degree  and  estate,  which  presumption  is,  however,  as  the  cases 
of  Seaton  v.  Benedict,  Jolly  v.  Jiees,  and  Debenham  v.  Mellon  show,  liable 
to  be  rebutted ;  and  where  the  wife  is  living  apart  from  the  husband  there 
is  no  presumption  that  she  has  any  authority  to  bind  him,  and  it  must 
be  shown  that  from  the  circumstances  of  the  separation,  or  the  conduct 
of  the  husband,  she  has  such  authority.  When  the  husband  and  wife 
are  living  separate,  the  law  as  to  the  husband's  liability  is  as  follows :  — 

Firstly,  Where  they  separate  by  mutual  consent,  and  no  allowance  is 
made  to  the  wife,  she  has  an  implied  authority  to  bind  him  for  neces- 
saries. 

Secondly,  Where  the  husband  unjustly  expels  his  wife  from  the  mari- 
tal roof,  or  forces  her  to  abandon  it  by  his  cruelty,  she  goes  forth  with 
an  implied  authority  to  bind  him  for  necessaries. 

Thirdly,  Where  they  live  separately,  the  husband  allowing  and  pay- 
ing the  wife  a  sufficient  sum  for  maintenance,  she  has  no  authority  to 
bind  him  for  necessaries.     (See  Eastland  v.  Biirchell,  47  L.  J.  Q.  B.  500; 

L.  R.  3Q.  B.  D.432.) 

Fourthly,  Where  the  wife  unlawfully  and  against  the  husband's  con- 
sent leaves  him,  or  if  she  elopes  or  lives  in  adultery,  she  has  no  implied 
authority  to  bind  him. 

[The  doctrine  of  the  principal  cases  is  followed  by  the  courts  in  this 
country,  and  the  same  rules  of  law  arising  therefrom,  as  stated  by  the 
author  in  his  note  to  those  cases,  are  also  adopted.  The  statutes  enacted 
in  the  various  States  removing  the  disabilities  of  married  women,  do  not 
supersede  the  common  law  as  enunciated  here.  They  in  no  wise  affect 
the  doctrine  oi  agency  arising  from  cohabitation.  But  they  are  enabling, 
and  confer  the  power  on  married  women  to  bind  themselves  by  express 
promise,  or  by  inducing  credit.  See  Kelly  on  Conts.  of  Married 
Women,  passim  l\ 


84     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


ROE   V.   TRANMAR. 

(S.  L.  C.  Vol.  II.  p.  416.) 
(WiLLES,  682.) 

Here  it  was  held  that  a  deed  which  could  not  oper- 
ate as  a  release,  as  it  attempted  to  convey  a  freehold 
in  fiitiiro,  should  nevertheless  operate  as  a  covenant  to 
stand  seized. 

Notes.  —  The  principle  wliich  tliis  case  carries  out  is  one  of  great 
importance,  forming,  indeed,  one  of  the  first  rules  of  construction  of  all 
written  instruments,  viz.,  "  The  construction  shall  be  liberal ;  words 
ought  to  serve  the  intention,  not  contrarywise." 

It  appears  convenient  here  to  give  some  of  the  chief  rules  for  the 
construction  of  deeds  :  — 

1.  A  deed  is  to  be  expounded  according  to  the  intention,  where  that 
intention  is  clear,  rather  than  according  to  the  precise  words  used,  for 
"verba  intentioni  debent  in  servirc"  and  '■'■  qui  haret  in  liter  A,  harat  in 
cortice." 

2.  To  explain  an  ambiguity  apparent  on  the  face  of  a  deed,  no  evi- 
dence dehors  the  deed  itself  is  admissible. 

3.  The  construction  of  a  deed  should  be  made  upon  the  entire  instru- 
ment, and  so  as  to  give  effect,  as  far  as  possible,  to  every  word  that  it 
contains. 

4.  The  construction  should  be  favorable,  and  such  that  "  res  magis 
valeat  quant  pereat." 

5.  When  any  thing  is  granted,  the  means  necessary  for  its  enjoyment 
are  also  granted  by  implication  ;  for  it  is  a  maxim  that  "  adcunqiie  aliquid 
conceditur,  conceditur  et  id  siiie  quo  res  ipsa  non  esse  potiiit." 

6.  If  there  be  two  clauses  in  a  deed  so  totally  repugnant  to  each 
other  that  they  cannot  stand  together,  the  first  shall  be  received  and  the 
latter  rejected. 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES,      85 

7.  Ambiguous  words  shall  be  taken  most  strongly  against  the  grantor, 
and  in  favor  of  the  grantee.  "  Verba  fortius  accipiuntur  contra  prefer- 
entem."  But  this  being  a  rule  of  some  strictness  and  rigor,  is  the  last 
to  be  resorted  to,  and  is  never  to  be  relied  upon  but  when  all  other  rules 
of  exposition  fail ;  and  it  does  not  apply  to  a  grant  by  the  Crown  at  the 
suit  of   the   grantee.     (Stephen's   "Commentaries,"  8th   ed.   vol.  i,  pp. 

497-499-) 

[In  an  important  case  in  point  with  the  principal  case,  it  was  decided 
that  a  deed  made  to  take  effect  in  fiituro  (at  the  grantor's  death)  is 
good  as  a  covenant  to  stand  seised  to  the  grantee's  use,  notwithstand- 
ing the  absence  of  any  relationship  between  them  by  blood  or  mar- 
riage, the  deed  reciting  a  valuable  consideration.  ( T?-afto7i  v.  Hawes, 
102  Mass.  533.)  And  in  a  recent  case  it  was  held  that  a  deed  made  to 
take  effect  at  the  grantor's  death,  if  the  grantee  should  survive  him,  but 
not  to  be  operative  should  there  be  no  survival  of  the  grantee,  would 
create  a  feoffment  to  take  effect  in  future,  the  recording  of  the  deed 
operating  in  the  same  manner  as  livery  of  seisin  at  the  grantor's  death. 
(Barrows,  J.,  in  Abbott  v.  Holway,  Sup.  Jud.  Ct.  Maine,  June,  1S81.)] 


86     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


MERRYWEATHER   v.    NIXAN. 

(S.  L.  C.  Vol.  II.  p.  479.) 
(8  T.  R.  186.) 

Decided :  That  if  A  recover  iji  tort  against  two  de- 
fendants and  levy  the  whole  damage  on  one,  that  one 
cannot  recover  a  moiety  against  the  other  for  his  con- 
tribution ;  though  it  is  otherwise  in  assumpsit. 

Notes.  —  This  decision  seems  to  be  only  a  modification  of  the  maxim, 
"  Ex  turpi  causa  non  oritiir  actio,"  and  the  whole  decision  may  be 
shortly  expressed  by  saying  that  as  between  defendants  ex  contractu  the 
law  allows  contribution,  but  not  between  defendants  ex  delicto. 

Where  a  person  instructs  another  to  do  an  act  manifestly  illegal  in 
itself  and  that  other  does  it,  he  has  no  right  to  be  indemnified  by  the 
person  so  instructing  him,  although  he  had  undertaken  to  indemnify  him 
from  the  consequences;  but  it  is  otherwise  if  the  act  is  not  manifestly 
illegal  and  he  did  not  know  it  to  be  so.  (Indermaur's  "  Principles  of  the 
Common  Law,"  Am.  ed.  pp.  290,  3S6.) 

[A  bridge,  maintained  by  two  counties,  broke  down  and  severely 
injured  the  plaintiff.  It  had  recently  been  examined  and  repaired  by 
the  proper  authorities,  and  was  supposed  to  be  safe.  One  county  brought 
an  action  against  the  other  to  compel  it  to  contribute  its  proportion 
of  the  judgment  recovered  against  the  plaintiff  in  an  action  against  it 
for  damages  ;  and  it  recovered.  The  Court  says:  "Contribution  is  fixed 
upon  general  principles  of  justice,  and  does  not  spring  from  contract." 
(Armstrong  V.  Clarion,  66  Penn.  St.  218.) 

Where  a  field-driver  was  obliged  to  pay  damages  for  selling  cattle 
under  irregular  proceedings,  he  was  allowed  to  recover  by  way  of  con- 
tribution, against  him  who  instituted  the  proceedings  and  caused  the 
officer  to  act.     {Jacobs  v.  Pollard,  10  Cush.  287.) 

"  It  is  only  when  a  person  knows  or  must  be  presumed  to  know  that 
his  act  was  unlawful,  that  the  law  will  refuse  to  aid  him  in  seeking  an 
indemnity  for  contribution."] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      87 


VICARS   V.   WILCOCKS. 

(S.  L.  C.  Vol.  II.  p.  484.) 
(8  East  i.) 

In  this  case  it  appeared  that  the  plaintiff  had  been 
retained  by  J.  O.  as  a  journeyman,  and  that  the  defend- 
ant had,  in  discourses  with  third  persons,  imputed  to 
the  plaintiff  that  he  had  maliciously  cut  the  defend- 
ant's cordage  in  his  rope-yard,  and  that  in  consequence 
of  such  imputation  the  said  J.  O.  had  discharged  plaintiff 
from  his  service,  and  he  had  thus  been  much  injured. 

Decided:  That  damage,  to  be  actionable,  must  not  be 
too  remote  ;  and  that  where  special  damage  is  neces- 
sary to  sustain  an  action  for  slander,  it  is  not  sufficient 
to  prove  a  mere  wrongful  act  of  a  third  person  induced 
by  the  slander,  such  as  that  he  dismissed  the  plaintiff 
from  his  employ  before  the  end  of  the  term  for  which 
they  had  contracted  ;  but  the  special  damage  must  be 
a  legal  and  natural  consequence  of  the  slander. 


LUMLEY   V.    GYE. 

(22  L.  J.  (N.  S.)  O.  B.  463.) 

This  was  an  action  by  the  manager  of  one  theatre 
against  the  manasrer  of  another  for  dama£:es  for  indu- 


88      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

cing  a  singer  to  break  her  engagement  with  him,  and  the 
doctrine  in  Vicars  v.  VVilcocks,  as  above,  was  urged  to 
frustrate  the  action  —  the  damage  of  course  resulting 
from  a  wrongful  act. 

Decided:  That  the  action  could  be  maintained. 


HADLEY   V.    BAXENDALE. 

(9  Ex.  341.) 

This  was  an  action  of  assumpsit  brought  against  the 
defendants  as  carriers.  The  plaintiffs,  the  owners  of  a 
mill,  finding  one  of  the  shafts  broken,  sent  to  defend- 
ants' office  a  servant,  who  mformed  the  clerk  there, 
that  the  mill  was  stopped,  and  that  the  shaft  must  be 
sent  at  once,  and  the  clerk  informing  him  that  if  sent 
any  day  before  twelve  o'clock  it  would  be  delivered  the 
following  day,  the  shaft  was  sent  and  the  carriage  paid. 
The  neglect  arose  in  the  non-delivery  in  sufficient  time, 
whereby  the  making  of  a  new  shaft  was  delayed  several 
days.  Evidence  was  given  of  the  loss  of  profits  caused 
by  the  stoppage  of  the  mill,  which  was  objected  to  by 
the  defendants  as  being  too  remote.  Decided:  That 
the  loss  of  the  profits  could  not  be  taken  into  account 
in  estimating  the  damages  ;  and  that  the  damages  in 
respect  of  breach  of  contract  should  be  such  as  might 
fairly  and  reasonably  be  considered  either  arising  natu- 
rally, or  such  as  might  reasonably  have  been  supposed 
to  have  been  in  the  contemplation  of  both  parties  at 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      89 

the  time  they  made  the  contract  as  the  probable  result 
of  the  breach  of  it. 


Notes  on  these  three  Cases.  —  These  cases  embrace  the  question  of 
the  proper  measure  of  damages  in  actions  of  tort,  and  of  contract,  and 
the  subject  being  of  very  great  importance  a  few  observations  on  it  may 
be  found  useful. 

Firstly.  In  actions  of  cotttract.  The  rule  in  assessing  damages  here 
is  much  more  strictly  confined  than  in  actions  of  tort,  and  generally  the 
primary  and  immediate  result  of  the  breach  of  contract  only  can  be 
looked  to,  thus,  in  the  case  of  non-paj-ment  of  money,  no  matter  what 
amount  of  inconvenience  is  sustained  by  the  plaintiff,  the  measure  of 
damages  is  the  interest  of  the  money  only.  The  principle  seems  to  be 
in  these  cases  that  in  matters  of  contract  the  damages  to  which  a  party 
is  liable  for  its  breach  ought  to  be  in  proportion  to  the  benefit  he  is  to 
receive  from  its  performance.  Mr.  Mayne  in  his  "  Treatise  on  Damages," 
3d  ed.  (p.  9),  says:  "It  is  obviously  unfair  that  either  party  should  be 
paid  for  carrying  out  his  bargain  on  one  estimate  of  its  value,  and  forced 
to  pay  for  failing  in  it  on  quite  a  different  estimate.  This  would  be 
making  him  an  insurer  of  the  other  party's  profits  without  any  premium 
for  undertaking  the  risk." 

Now,  as  to  the  grounds  of  damage  which  will  in  no  case  be  admis- 
sible, they  may  be  classed  under  the  general  head  of  remoteness.  "  Dam- 
age," says  Mr.  Maj-ne  (p.  39),  "is  said  to  be  remote  when,  although 
arising  out  of  the  cause  of  action,  it  does  not  so  immediately  and  neces- 
sarily flow  from  it  as  that  the  offending  party  can  be  made  responsible 
for  it."  And  it  is  here  that  the  case  of  Hadley  v.  Baxendale  (which  is 
one  intended  to  settle  the  law  upon  the  subject,  and  which  has  since 
been  acted  upon)  comes  in,  laying  down  the  rule  as  given  above  in  that 
case,  and  which  rule  was  shortly  stated  by  Blackburn,  J.,  in  Cory  v. 
Thames  Iron  Works  Co.  (L.  R.  3  Q.  B.  1S6),  thus:  "The  damages  are 
to  be  what  would  be  the  natural  consequences  of  a  breach  under  circum- 
stances which  both  parties  were  aware  of."  If  the  damages  are  not 
within  this  rule,  then  they  are  too  remote  and  cannot  be  admitted.  There 
is,  however,  no  doubt  very  often  considerable  difticulty  in  determining 
whether,  when  there  are  any  special  circumstances  in  a  case,  such  spe- 
cial circumstances  can  or  cannot  be  taken  into  account  in  arriving  at  the 
amount  of  the  damages.  The  correct  rule  appears  to  be  that  where 
there  are  any  special  circumstances  connected  with  a  contract  which  may 


90     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

cause  special  damage  to  follow  if  it  is  broken,  mere  notice  of  such  spe- 
cial circumstances  given  to  one  party  will  not  render  him  liable  for  the 
special  damage  unless  it  can  be  inferred  from  the  whole  transaction  that 
he  consented  to  become  liable  for  such  special  damage,  and  that  if  the 
person  has  an  option  to  refuse  to  enter  into  the  contract  but  still  enters 
into  it,  this  will  be  evidence  that  he  accepted  the  additional  risk  in  case 
of  breach.     (Mayne  on  Damages,  S-34.) 

Secondly,  In  actions  of  tort.  The  rule  here  as  to  damages  is  of  a 
very  much  looser  character  than  in  actions  of  contract,  and  it  naturally 
is  so  from  the  nature  of  the  action.  With  the  one  exception  of  actions 
for  breach  of  promise  of  marriage,  the  motives  or  conduct  of  a  party 
breaking  a  contract,  or  any  injurious  circumstance  not  flowing  from  the 
breach  itself  cannot  be  considered  as  damages  where  the  action  is  on 
the  contract,  but  torts  may  be  mingled  with  ingredients  which  will 
increase  the  damages  to  any  extent,  for  a  trespass  may  be  attended  with 
circumstances  of  insult ;  or,  generally,  in  an  action  of  tort  any  species 
of  aggravation  will  give  ground  for  additional  damages,  and  it  is  in  such 
cases  as  this  that  the  rule  can  go  no  further  than  to  point  out  what  evi- 
dence may  be  admitted,  and  what  grounds  of  complaint  may  be  allowed 
for,  and  the  rest  must  be  left  to  the  jury. 

Again,  however,  in  considering  the  grounds  of  damage  which  will  be 
admitted  here,  we  must  remember  that  it^  must  not  be  too  remote,  and 
on  this  point  the  case  of  Vicars  v.  Wilcocks  may  be  given.  That  case, 
however,  goes  particularly  to  lay  down  the  rule  that  the  wrongful  act  of 
some  third  party,  induced  by  defendant,  can  never  be  taken  into  consid- 
eration in  assessing  the  damage  against  defendant,  for  the  damage  must 
be  not  only  the  natural  but  also  the  legal  consequence.  This  doctrine, 
manifestly  unjust,  after  having  been  shaken  by  various  authorities,  seems 
to  be  now  finally  overruled  by  the  above  case  of  Liiniley  v.  Gye,  the 
effect  of  which  is  to  alter  the  rule  in  Vicars  v.  Wilcocks,  by  allowing  that 
the  wrongful  act  of  the  third  party  may  form  part  of  the  damage  where 
such  wrongful  act  might  be  naturally  contemplated  as  likely  to  spring 
from  the  defendant's  conduct. 

As  to  the  time  to  which  any  damages,  whether  in  contract  or  tort, 
may  be  assessed,  of  course  no  damages  can  be  given  on  account  of  any 
thing  before  the  cause  of  action  arose,  and  as  to  damages  subsequent  to 
the  cause  of  action,  the  result  of  the  decisions  is  stated  by  Mr.  Mayne 
(p.  84)  to  be,  that  such  damages  "may  be  taken  into  consideration  where 
they  are  the  natural  and  necessary  result  of  the  act  complained  of,  and 
where  they  do  not  themselves  constitute  a  new  cause  of  action." 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      9 1 

For  further  information  on  the  subject  of  Damages  the  student  is 
referred  to  Mr.  Mayne's  "  Treatise  on  Damages,"  from  which  work  the 
above  notes  are  mainly  gathered.  (See  also  hereon  Indermaur's  "  Prin- 
ciples of  the  Common  Law,"  Am.  ed.,  Part  III.  Ch.  i.) 

[The  party  inducing  the  act  and  the  injury  sustained  by  it  must  bear 
one  to  the  other  the  relation  of  cause  to  effect.  The  injury  must  be  the 
proximate  result  of  the  act  complained  of. 

In  actions  brought  for  breaches  of  contracts,  profits  which  might  have 
grown  out  of  them  are  proper  items  of  damages  to  be  recovered ;  but 
profits  which  might  come  to  one  from  contracts  entered  into,  but  collat- 
eral to  those  between  the  parties,  are  too  remote  and  speculative  as  an 
item  of  damage.     [Fox  v.  Harding,  7  Cush.  i;i6.) 

The  plaintiff  had  sold  a  lot  of  wool,  if  it  could  be  delivered  immedi- 
ately, and  agreed  with  a  common  carrier  that  the  latter  should  forward 
it  to  the  purchaser  by  first  freight  train  the  next  day.  The  carrier  failed 
to  perform  his  agreement,  and  the  sale  was  lost.  In  an  action  for  dam- 
ages by  the  loss  of  the  sale,  the  plaintiff  recovered  judgment  against  the 
carrier.  It  was  held  that  the  jury  might  have  found  that  the  contract 
between  the  parties  to  the  suit  was  made  for  the  purpose  of  completing 
the  sale.     {Demingv.  Grand  Trunk  K.R.  Co.,  48  N.H.  455.)] 


92      AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 


NEPEAN   V.    DOE. 

(S.  L.  C.  Vol.  II.  p.  495.) 
(2  M.  &  W.  894.) 

Decided:  That  where  a  person  goes  abroad  and  is 
not  heard  of  for  seven  years  the  law  presumes  the  fact 
that  such  person  is  dead,  but  not  that  he  died  at  the 
beginning  or  the  end  of  any  particular  period  during 
those  seven  years. 

N'otes.  —  Of  course,  this  presumption  of  law  is  liable  to  be  rebutted, 
and  though  there  is  no  presumption  of  law  as  to  the  period  of  death, 
such  a  presumption  may  arise  from  particular  circumstances ;  but  this 
is  matter  of  evidence,  and  the  onus  of  proving  that  the  death  took  place 
at  any  particular  time  within  the  seven  years  lies  upon  the  person  who 
claims  a  right  to  the  establishment  of  which  that  fact  is  essential.  There 
is  also  no  presumption  of  law  in  favor  of  the  continuance  of  life,  though 
an  inference  of  fact  may  legitimately  be  drawn  that  a  person  alive  and 
in  health  on  a  certain  day  was  alive  a  short  time  afterwards  {In  re  Phene, 
L.  R.  5  Ch.  139;  see  also  Hickman  v.  Upsall  (App.)  46  L.  J.  Ch.  245; 
L.  R.  2Ch.  D.  617). 

[Evidence  that  one  who  had  not  been  heard  from  for  a  period  of 
seven  years  had  died  at  a  precise  time,  must  be  sufificient  to  satisfy  a 
jury  that  death  occurred  at  that  time  in  addition  to  the  presumption  of 
it  by  the  lapse  of  seven  years.     [Spencer  v.  Roper,  13  Ired.  333.) 

The  presumption  of  death  will  not  preclude  the  party  supposed  to  be 
dead  from  asserting  his  rights  upon  his  re-appearance.  [Rosetithal  v. 
MayJuigh,  33  Ohio  St.  155.)] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.     93 


DUCHESS   OF   KINGSTON'S   CASE. 

(S.  L.  C.  Vol.  II.  p.  605.) 
(BuL.  N.  P.  244.) 

In  this  case  there  were  two  questions  submitted  to 
the  judges  :  (i)  Is  the  sentence  of  a  spiritual  court 
against  a  marriage,  in  a  suit  for  jactitation  of  marriage, 
conclusive,  so  as  to  stop  the  counsel  for  the  Crown 
from  proving  the  said  marriage  in  an  indictment  for 
Polygamy.?  (2)  Admitting  such  sentence  to  be  con- 
clusive upon  such  indictment,  may  the  counsel  for  the 
Crown  be  admitted  to  avoid  the  effect  of  the  sentence 
by  proving  the  same  to  have  been  obtained  by  fraud  or 
collusion  .''  Decided:  (i)  That  the  sentence  was  not  so 
conclusive.  And  (2)  That  even  admitting  that  it  were, 
yet  it  might  be  avoided  by  showing  fraud  or  collusion. 

Notes.  —  This  case  embraces  the  doctrine  of  estoppel,  the  definition 
of  which  Lord  Coke  gives  thus  :  "  An  estoppel  is  where  a  man  is  con- 
cluded by  his  own  act  or  acceptance  to  say  the  truth ;  "  but  more  plainly, 
it  is  "  an  admission,  or  something  treated  by  the  law  as  equal  to  an 
admission,  of  such  a  high  and  conclusive  character  that  the  party  whom 
it  affects  is  not  permitted  to  answer  or  offer  evidence  against  it."  Es- 
toppel is  of  three  kinds:  (i)  By  matter  of  record;  (2)  By  deed;  and  (3) 
In  pais,  which  latter  means,  matter  of  fact. 

The  doctrine  of  estoppel  does  not  prevent  a  deed  from  being  impeach- 
able for  fraud  or  illegality.     (See  Collins  v.  Blantern,  ante,  p.  36.) 

[In  a  late  case  upon  the  question  of  estoppel,  arising  in  an  action 
upon  a  policy  of   life  insurance,  the  following  language  is  used  by  the 


94 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES, 


Court:  "Any  agreement,  declaration,  or  course  of  action,  on  the  part 
of  an  insurance  -company,  which  leads  a  party  insured  honestly  to  believe 
that  by  conforming  thereto  a  forfeiture  of  his  policy  will  not  be  incurred, 
followed  by  due  conformity  on  his  part,  will  and  ought  to  estop  the  com- 
pany fror.i  insisting  upon  the  forfeiture,  though  it  might  be  claimed  under 
the  express  letter  of  the  contract.  The  company  is  thereby  estopped 
from  eMorcing  the  forfeiture."     {Ins.  Co.  v.  Eggleston,  96  U.S.  577.)] 


AN    EPITOME    OF    LEADING    COMMON    LAW    CASES.      95 


HOCHSTER  V.    DE    LA   TOUR. 

(2  Ell.  &  Bl.  678.) 

Here  there  was  an  agreement  to  employ  the  plaintiff 
as  a  courier  from  a  day  subsequent  to  the  date  of  the 
writ,  and  before  the  time  for  the  commencement  of 
the  employment  defendant  had  refused  to  perform  the 
agreement,  and  had  discharged  the  plaintiff  from  per- 
forming it ;  whereupon  he  had  brought  this  action. 
Decided:  That  a  party  to  an  agreement  may,  before 
the  time  for  executing  it,  break  the  agreement,  either 
by  disabling  himself  from  fulfilling  it  or  by  renouncing 
the  contract,  and  that  an  action  will  lie  for  such  breach 
before  the  time  for  fulfilment  of  the  agreement. 


FROST   V.    KNIGHT. 

(L.  R.  7  Ex.  in.) 

In  this  case  the  defendant  had  promised  to  marry 
the  plaintiff  on  the  death  of  his  father ;  and  he  had 
afterwards,  during  his  father's  life,  announced  his  abso- 
lute determination  never  to  fulfil  his  promise. 

Decided  (on  the  authority  of  HocJister  v.  De  la  Tour)  : 
that  the  plaintiff  might  at  once  regard  the  contract  as 


96     AN    EPITOME    OF    LEADING    COMMON    LAW    CASES. 

broken,  in  all  its  obligations  and  consequences,  and  sue 
thereon. 


N'otes  on  these  iivo  Cases.  —  The  principle  decided  in  Hochster  v.  De 
la  Tour  seems  to  be  one  of  reason,  for  when  a  man  is  bound  to  do  some 
act  at  a  future  day,  and  before  that  day  he  declares  he  shall  not  do  it, 
and  refuses  to  do  it,  there  seems  no  reason  why  the  cause  of  action 
should  be  delayed  until  the  arrival  of  that  future  day.  This  principle 
has  been  recognized  and  acted  on  in  the  case  of  Frost  v.  Knight,  given 
above,  overruling  the  decision  of  the  Court  below,  which  will  be  found 
reported  in  Law  Rep.  5  Ex.  322. 

[But  the  expression  of  an  intention  to  break  a  contract  will  not 
amount  to  a  breach  of  it :  there  must  be  an  express  renunciation  of  it. 
An  absolute  refusal  makes  the  breach  perfect.  The  contract  is  broken 
at  that  moment,  and  an  action  maybe  then  brought  upon  it.  {Lamoreaux 
V.  Rolfe,  36  N.H.  35.)  In  that  case  the  defendant  agreed  to  draw  a 
quantity  of  timber,  and  before  doing  any  thing  absolutely  refused  to 
perform  the  contract. 

If  the  performance  be  only  neglected,  no  breach  of  the  agreement 
occurs  until  the  expiration  of  the  time  limited  for  the  completion  of  it 
by  the  negligent  party.] 


GENERAL   INDEX. 


A. 

Action, 

May  be  brought  at  once  on  an  agreement  before  time  for  executing 
it  arrives  if  party  disable  himself  from  fulfilling  it,  or  if  he 
renounces  the  contract,  95,  96. 

Agency  :  See  Principal  and  Agent. 

Agreement, 

To  answer  for  debt,  &c.,  of  another  must  be  in  writing,  27,  28. 
Also  if  not  to  be  performed  within  a  year,  27,  28,  29. 
To  assume  mortgage  cannot  be  set  up,  &c.,  8. 
Meaning  of,  in  Statute  of  Frauds,  71. 

Alterations, 

In  a  bond,  55,  56. 

In  a  bill  of  exchange  or  promissory  note,  5  c,  56. 

Extension  of  doctrine  of  Pigofs  Case,  55,  56. 

Assignee, 

Not  affected  by  notice  of  an  existing  mortgage,  8. 

Assumpsit, 

Mere  voluntary  Courtesy  will  not  uphold  assumpsit,  16,  17. 

Assurance:  See  Insurance. 

Authority, 

If  given  by  the  law,  and  abused,  renders  a  man  a  trespasser  ab  initio, 

14,  15- 
Otherwise,  if  given  by  the  party,  14. 


98  GENERAL    INDEX. 

B. 

Bailments  :  See  Carriers. 

How  classified  by  Lord  Holt,  21. 

Gratuitous  bailee  liable  only  for  gross  negligence,  21. 

But  if  in  a  situation  that  implies  skill,  he  must  use  that  skill,  22,  23. 

Banker, 

Taking  a  check  of  a  third  person  from  his  customer  on  account  of 
amount  owing  by  customer  has  as  perfect  a  title  to  it  as  if  he  then 
paid  value  for  it,  46. 

Bank-note, 

Property  in,  passes  like  cash  by  delivery,  44. 
The  same  as  to  all  negotiable  instruments,  44,  45. 

Bankruptcy,  3. 

Bill  of  Exchange:  See  Alterations;  Negotiable  Instruments. 
When  notice  of  dishonor  not  necessary,  63. 
Illustration  of  case  of  Bickerdike  v.  BoUmau,  63. 
Principle  of  that  case  not  to  be  extended,  63. 
Time  for  giving  notice  of  dishonor,  63. 
Consideration  need  not  appear  on  the  face  of,  71,  72. 

Bills  of  Sale, 
Act  of  1878,  3. 
As  fraudulent  conveyances,  3. 

Breach  of  Promise  of  Marriage, 

Action  for,  may  be  brought  at  once,  though  the  promise  was  for 
some  future  day,  if  the  party  has  announced  that  he  will  not 
fulfil  the  promise,  95. 

c. 

Canal  Companies:  See  Carriers. 

Carriers, 

Definition  of  a  carrier,  22. 

Their  liability  at  Common  Law,  22,  24. 

Their  liability  as  modified  by  statute,  22,  23. 

Right  to  delay  delivery  in  cases  of  stoppage  in  transitu,  54. 

Receipt  passes  title  if  so  intended,  54. 

Their  liability  limited  by  special  contract,  24. 

Doty  of,  23. 


GENERAL    INDEX.  99 

Caveat  Emptor, 

Maxim  of,  has  no  application  in  policies  of  insurance,  74. 
Applies  to  negotiable  instrument  not  bought  as  a  chattel,  47. 

Check  :  See  Negotiable  iNSTraiMENTS. 

When  paid  over  to  third  party  for  value  or  for  an  antecedent  debt 

may  be   sued   on   by  such   third   party  though   consideration  for 

drawing  fails,  44,  45. 
Effect  of  crossing,  47. 

When  it  must  be  presented  for  payment,  64. 
When  not  necessary  to  give  notice  of  dishonor  of,  64. 

Condition, 

Not  to  alien  without  license  destroyed  by  one  license,  4. 
Not  assignable,  4. 

Condition  Precedent,  61. 

Consideration, 

Of  what  it  consists,  16,  17. 

When  an  executed  consideration  will  support  an  action,  16,  17. 
Must  appear  in  the  written  instrument  (if  one)  as  well  as  the  prom- 
ise, 71. 
Except  in  the  case  of  guaranties,  71. 
May  be  pre-existing  debt,  47. 

Construction, 

Shall  be  liberal,  84. 

Rules  for  construction  of  deeds,  84,  85. 

Contribution, 

No  contribution  between  tort-feasors,  86. 

Conversion,  34,  35. 

Covenants, 

What  covenants  run  with  the  land,  6. 
What  is  meant  by  their  running  with  the  land,  6,  7. 
They  extend  to  equities  of  redemption  when,  8. 
Reason  of  passing  of  statute  of  32  Hen.  8,  c.  34  .  .  7. 
Provisions  of  the  Conveyancing  Act,  1881,  as  to,  7,  8. 
In  other  cases  than  between  landlord  and  tenant,  7,  S. 


lOO  GENERAL    INDEX, 

Creditors, 

Fraud  on,  1-3. 
Custom, 

To  take  away-going  crop,  good,  if  not  repugnant  to  lease,  48. 

D. 

Damages, 

When  they  arise,  25,  26. 

Must  not  be  too  remote,  87,  91. 

The  rule  as  to  damages  in  respect  of  breach  of  contract,  87,  88. 

Rule  in  assessing  in  actions  of  contract,  89. 

The  same  in  actions  of  tort,  90. 

May  now  consist  in  being  caused  by  a  wrongful  act,  90. 

As  to  the  time  when  it  occurred,  90. 
Damnum  sine  injuria. 

Meaning  of  the  term,  25. 
Death, 

Presumption  of,  92. 

No  presumption  in  favor  of  continuance  of  life,  92. 
Deeds, 

Rules  for  construction  of,  84,  85. 
Distress, 

Irregularities  in,  14. 

List  of  things  privileged  from,  40,  41. 
Dissolution  of  Partnership, 

When  it  takes  place,  59,  60. 

When  decreed,  59,  60. 
Duty, 

Entry  made  by  deceased  person  in  discharge  of  his  duty  and  in 
ordinary  course  of  business  admissible  in  evidence,  30. 

E. 

Estoppel, 

Defendant  not  estopped  from  pleading  illegality  to  action  on  a 
bond,  36. 

Sentence  of  a  spiritual  court  against  a  marriage  in  a  suit  for  jactita- 
tion of  marriage  does  not  estop  counsel  for  the  Crown  from  proving 
such  marriage  in  an  indictment  for  polygamy,  93. 

Definition  of  estoppel,  93. 


GENERAL   INDEX.  lOI 

Evidence  :  See  Witness. 

When  entries  made  by  deceased  persons  are  admissible,  30. 
Hearsay,  31. 

Execution, 

List  of  things  privileged  from,  40,  41. 

Expressum  facit  cessare  tacitum,  48. 

F. 

Factors, 

Though  factor  sells   goods   in   his   own  name,   the   principal   may 

sue,  "](). 
Rule  as  to  set-off  in  such  cases,  76. 
Power  of,  over  goods  at  common  law,  76,  77. 

False  Affirmation, 

When  actionable,  18,  20. 
Of  agent,  unauthorized,  20. 
Within  knowledge  of  one  party,  20. 

Fixtures, 

Those  erected  for  trade  purposes  may  be  removed,  69. 

Recent  legislation  as  to  agricultural  fixtures,  69. 

Statement  of  law  as  to,  6g. 

When  mortgage  of  buildings  with  fixtures  must  be  registered  as  a 

bill  of  sale,  70. 
Purpose  for  which  it  is  employed  governs,  70. 

Fraudulent  Conveyances  or  Gifts, 

Avoided  in  favor  of  creditors  and  others,  i. 

Presumption  of  fraud,  i,  3. 

Grounds  of  decision  in  Tivynne's  Case,  i,  2. 

One  creditor  may  be  preferred  openly  to  another,  2. 

The  statute  13  Eliz.  c.  5,  is  declaratory  of  the  Common  Law,  2. 

Bankruptcy  Act,  1S69,  2. 

Frauds,  Statute  of  :  See  Lease  ;  Agreement. 
What  agreements  are  within  the  statute,  27. 
Effect  of  lease  for  more  than  three  years,  67,  68. 


I02  GENERAL    INDEX. 

G. 

Guarantee, 

Must  be  in  writing,  27,  28. 

Definition  of,  28. 

But  consideration  need  not  appear  on  its  face,  28,  71,  72. 

H. 

Hearsay  Evidence,  30,  31. 

Husband  and  Wife, 

To  bind  husband,  wife  must  act  by  his  express  or  implied  authority, 

81,  82. 
Recent  cases  on  this  subject,  82. 
A  woman  living  with  a  man  as    his  wife,  though   not   actually  so, 

stands  in  the  position  of  a  wife,  82. 
State  of  the  law  as  to  liability  of  husband,  when  wife  living  apart 

from  him,  83. 
Voluntary  conveyances,  3. 

I. 

Illegality, 

May  be  pleaded  to  action  on  a  bond,  36. 

Inn, 

Definition  of,  11. 

Innkeeper, 

What  is  necessary  to  charge  him  at  common  law,  12. 

Definition  of,  11. 

Duty  of,  II,  12. 

His  liability  at  common  law,  12,  13. 

Recent  legislation  as  to  liability  of,  12. 

Remedies  of,  if  bill  not  paid,  12. 

His  lien  ;  cases  and  statement  with  regard  to,  12. 

Insurance, 

What  contract  of  life  assurance  is,  73,  74. 

What  may  be  recovered  when  there  are  several  policies,  73,  74. 

What  interest  is  necessary,  74,  75. 

When  an  insurable  interest  in  the  life  of  a  relative,  74. 

Perfect  good  faith  necessary  in  effecting  a  policy  of,  74. 

Recent  case  as  to  Marine  Insurance,  74. 

Position  of  vendee  when  vendor  has  insured,  74. 


GENERAL    INDEX.  IO3 

Interest, 

Entry  by  deceased  person  against  his  interest  is  admissible  in  evi- 
dence, 30. 

J. 

Judicature  Acts, 

Provisions  in,  abolishing  the  law  of  venue,  51. 

L. 

Lease, 

Though  by  parol  for  more  than  three  years  may  operate  as  a  ten- 
ancy from  year  to  year,  67,  68. 

Though  lease  void  under  Statute  of  Frauds  and  tenant  holds  from 
year  to  year,  yet  such  holding  governed  by  terms  of  lease  in  other 
respects,  67,  68. 

Libel, 

Not  neceesary  to  maintain  action  for,  that  the  words  should  be  such 
as  if  spoken  would  be  actionable  as  slander,  65,  66. 

Equity  has  now  jurisdiction  to  grant  injunction  to  restrain  publica- 
tion of,  65. 

Local  Actions,  51. 

Lodgers'  Goods, 

Not  now  liable  to  be  distrained  on,  40. 

M. 

Married  Woman  :  See  Husband  and  Wife. 

Master, 

Liable  for  loss  of  customer's  property  intrusted  to  servant,  34. 

Mortgage, 

Of  buildings  with  fixtures  need  not  be  registered,  70. 

Mortgagee, 

His    rights    against   tenant   claiming   under   lease   from   mortgagor 

( I )  since  the  mortgage,  and  (2)  prior  to  the  mortgage,  49,  50. 
Different  remedies  of,  50. 
Foreclosing  and  then  suing,  50. 
Selling  under  power  of  sale,  and  then  suing,  5a 
As  to  leases  by,  49,  50. 


104 


GENERAL    INDEX. 


Mortgagor, 

When  he  may  sue  for  possession,  49,  50. 
As  to  leases  by,  49,  50. 


N. 


Negotiable  Instruments  :  See  Bills  of  Exchange. 
Special  advantage  of,  44. 
When  maker  of  has  a  defence  against  bond  fide  holder,  45. 


P. 

Partnership, 

What  constitutes  it,  57,  58,  59,  60. 

Recent  legislation  on  the  subject,  58,  59. 

Liabilities  of  dormant  and  nominal  partners,  59. 

When  one  partner  binds  the  other,  58,  59,  60. 

How  dissolved,  59,  60. 

When  Equity  will  decree  dissolution  of,  59,  60. 

Payment, 

Of  a  smaller  surp  cannot  satisfy  a  greater,  32. 

Presumption  of  Law, 

Arises  when  a  person  goes  abroad   and  is  not  heard  of  for  seven 

years,  that  he  is  dead,  92. 
But  no  presumption  as  to  time  of  death,  92. 
No  presumption  in  favor  of  continuance  of  life,  92. 

Principal  and  Agent, 

If  principal  is  known  and  yet  the  agent  is  debited,  the  principal  can- 
not afterwards  be  charged,  78,  79. 
Otherwise,  if  principal  is  not  known  at  the  time,  78,  79,  80. 
How  agent's  authority  determined,  80. 
Revocation  of  agent's  authority  should  be  made  known,  80. 

Promissory  Note:  See  Bills  of  Exchange;  Negotiable  Instru- 
ments. 
Consideration  need  not  appear  on  the  face  of,  71. 


GENERAL    INDEX.  IO5 

R. 

Railway  Companies:  See  Carriers. 

Restraint  of  Trade, 

If  general  or  unreasonable,  void,  38,  39. 

But  if  partial,  and  reasonable,  and  for  consideration,  good,  3S,  39. 
Part  of  agreement  may  be  void,  and  part  good,  39. 
Contracts  in  restraint  of   trade  must  have  a   consideration,  though 
under  seal,  39. 

s. 

Satisfaction, 

Smaller  amount  not  a  satisfaction  of  a  greater,  32. 
But  some  different  thing  is,  32. 

Sheriff, 

When  he  may  break  a  house,  9,  10. 

Must  demand  entrance  before  breaking,  9,  10. 

May  break  inner  doors,  9. 

When  demand  is  unnecessary,  9. 

jNIay  break  outer  door  after  an  escape,  10. 

Slander, 

What  words  are  slanderous  in  themselves,  65. 

Statutes : 

32  Hen.  8,  c.  34  (Covenants),  7. 

13  Eliz.  c.  5  (Fraudulent  Conveyances),  i,  2. 
27  Eliz.  c.  4  ...  2. 

29  Car.  2,  c.  3  (Statute  of  Frauds),  27,  28,  67,  71. 
II  Geo.  2,  c.  19  (Distress),  14. 

14  Geo.  3,  c.  48  (Policies  —  Interests),  jt,^  74. 
9  Geo.  4,  c.  14  (Lord  Tenterden's  Act),  19. 

I  Wm.  4,  c.  68  (Carriers),  22. 

6  &  7  Vict.  c.  85  (Evidence),  42. 

14  &  15  Vict.  c.  25  (Agricultural  Fixtures),  69. 

14  &  15  Vict.  c.  99  (Evidence),  42. 

16  &  17  Vict.  c.  83  (Evidence),  43. 

17  &  iS  Vict.  c.  31  (Railway  and  Canal  Traffic  Act),  23. 
17  &  18  Vict.  c.  125  (Com.  Law  Proc.  Act,  1854),  43. 

19  &  20  Vict.  c.  97  (Mercantile  Law  Amendment  Act),  28,  71. 


I06  GENERAL    INDEX. 

Statutes,  —  continued : 

22  &  23  Vict.  c.  35  (License,  &c.),  4. 

23  &  24  Vict.  c.  38  (Waiver,  &c.),  4. 

23  &  24  Vict.  c.  145  (Lord  Cranworth's  Act),  50. 
26  &  27  Vict,  c.  41  (Innkeepers),  12. 
28  &  29  Vict.  c.  86  (Partnersliip),  58. 
32  &  33  Vict.  c.  68  (Evidence),  31,  43. 

32  &  33  Vict.  c.  71  (Bankruptcy  Act,  1869),  2. 

33  &  34  Vict.  c.  49  (Evidence),  42  n. 

34  &  35  Vict.  c.  79  (Lodgers'  Goods),  40. 

36  &  37  Vict.  c.  66  (Judicature  Act,  1873),  ^S- 
38  &  39  Vict.  c.  77  (Judicature  Act,  1875),  51. 

38  &  39  Vict.  c.  92  (Agricultural  Holdings  Act,  1875),  69. 

39  &  40  Vict.  c.  81  (Crossed  Checks),  47. 

40  &  41  Vict.  c.  39  (Factors),  53. 

41  &  42  Vict.  c.  31  (Bills  of  Sale  Act,  1878),  3,  70. 
41  &  42  Vict.  c.  38  (Innkeeper's  Lien),  12. 

44  &  45  Vict.  c.  41   (Conveyancing  and  Law  of  Property  Act,  188 1), 
7,  8,  49.  50- 

Stoppage  in  Transitu, 
What  it  is,  53. 

How  the  right  may  be  lost,  53. 
When  the  goods  are  in  transitu,  53. 
How  it  may  be  exercised,  53,  54. 


Transitory  Actions,  51. 

Trespass, 

Action  for  trespass  and  false  imprisonment  committed  abroad  lies 
here,  it  being  of  a  transitory  nature,  51. 

Trover, 

Evidence  necessary  in  action  of,  34. 


V. 

vendor  and  Purchaser. 

Rights  of  purchaser  in  respect  of  vendor's  insurance,  74,  75. 


GENERAL    INDEX.  lO/ 


Venue, 

Law  of,  abolished  by  Judicature  Act,  1875  .  .  51. 
Grounds  for  applying  to  change  place  of  trial,  51. 

Voluntary  Conveyances, 

Different  ways  in  which  liable  to  be  defeated,  2,  3. 

w. 

Waiver, 

Its  effect,  4. 

Recent  legislation  in  England,  4. 

Warranty, 

Definition  of,  19. 

What  amounts  to,  19. 

Subsequent  to  sale  bad,  19. 

Unless  made  on  fresh  consideration,  19. 

Distinction  between  and  false  representation,  19,  20. 

Need  not  prove  scienter  in  action  on,  20. 

Witness, 

Must  believe  in  existence  of  a  God,  42,  43. 
Recent  legislation,  42,  43. 
Admissibility  of,  42,  43. 


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